DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act.
The Applicants are seeking amnesty for the murder of Monde Mpatheni. The incident occurred in Botswana (Lobatse) in or about July 1981. At the relevant time both Applicants were trained cadres of Umkhonto weSizwe ("MK"), the military wing of the African National Congress ("the ANC"). At the hearing the Applicants were the only witnesses to testify and no person from the side of the deceased testified. The Committee was advised by the Evidence Leader that all diligent efforts to locate the whereabouts of the next-of-kin of the deceased were in vain. The matter, therefore, proceeded unopposed.
It is convenient to summarise the evidence of both Applicants which had no contradictions and is as follows:
Whilst they were in Botswana they received a warning from ANC Headquarters in Lusaka that there was information from ANC sources within South Africa that State Security Forces were preparing to launch an attack on their bases in Gaborone. They were being warned to be on the look out for spies who could possibly infiltrate their ranks. At the time there were continuous raids into the neighbouring countries by the South African Security Forces and many ANC members were killed. The deceased was a former cadre of the ANC who was deployed inside the country. He was arrested and turned by the South African Police to work for them, namely, to operate as an askari. The Applicants had also received information that the deceased was frequently seen in soweto. He was usually in the company of Joe Mamasela, also an ANC cadre who was deployed inside the country by the ANC. They had both been released and were never charged with any crime. The Applicants state that they were expecting the two (2) to face criminal charges, unless they had agreed to work with the police against the ANC and its cadres. Their repeated order to the two that they return to Gaborone and give a report on what had happened whilst they were in police detention and, in particular, how it came about that they were released without being charged, was not adhered to. The deceased and Mamasela never made any contact with them.
Some weeks later the deceased and Mamasela were seen by ANC cadres at Lobatse, Selibi-Pikwe. This was in Botswana and nobody knew how they came there. Because of the suspicions which prevailed at the time that they were working for the police they were abducted by the ANC. The Applicants' comrades found in their possession pistols which were fitted with silencers. They also had an arsenal of ammunition with them and it was clear that they had come to launch an attack. The suspects were taken to Gaborone Operational Headquarters of the ANC, where the Applicants were based at the time. On arrival there they were separated from each other and interrogated. During the course of the interrogation the deceased confessed that they had come to Botswana to kill as many of the MK cadres as possible. These were their instructions from the Vlakplaas Security Police. According to the plan they were to return to South Africa the next morning. They were first going to kill cadres at Selibi-Pikwe and Gaborone; Lobatse was to be their last point where they would spend the night in a house and depart the next day. The Applicants state that they decided to take the deceased by car to Lobatse so he could point out the house. It was the two (2) Applicants and another ANC cadre Martin Sere, who has since died. When the deceased came to Lobatse, he suddenly could not remember the location of the house. He requested to be allowed to alight from the vehicle so he could go and relieve himself in the bushes. Not knowing that the deceased was up to mischief, the Applicant and his company acceded to the request and stopped the vehicle. Then there was a commotion in the car as it transpired that the deceased had been hiding a pistol in his body. It was clear that the initial search had not been thorough. In the course of the ensuing struggle Ramphomane fired two (2) shots at the deceased. He died instantly. The Applicants say the deceased was on the point of shooting at that stage and would have killed them if they did not act as they did.
The next problem was what were they going to do with the body. They dowsed it with petrol and set the corpse alight. They did not want it to be known that they had committed a crime. They went back to the place where Mamasela was being held by other comrades. They decided that they were not going to ask him to take them to Lobatse and point out the house where they were going to sleep before proceeding to South Africa, but they took him to the "Ordinance People" for further interrogation and disciplining. Mamasela subsequently escaped and went to report the incident at the Gaborone Police Station.
The Applicants were subsequently arrested in Gaborone and charged with murder. They were found not guilty and discharged due to insufficiency of evidence.
The Applicants state that the killing of the deceased was necessary to protect ANC cadres and in particular the 2nd Applicant, Ramphomane, who occupied the back seat with the deceased whilst Thwala was driving. The deceased had taken the Applicants by complete surprise and pointed Ramphomane with a pistol.
After carefully considering the evidence in the matter and the context within which the incident occurred, we are satisfied that it happened as the result of the conflict of the past. It further appears that the Applicants have given a full disclosure of the relevant facts. Amnesty is therefore GRANTED for the murder of Monde Mpatheni at Gaborone in or about July 1981.
We are of the view that the next-of-kin of the deceased are victims in terms of the Act and accordingly recommend to the Committee on Reparations and Rehabilitation to make such finding in terms of the Act.
SIGNED AT CAPE TOWN ON THIS 11TH DAY OF DECEMBER 2000
ACTING JUDGE D POTGIETER SC
JUDGE J MOTATA
ADV N SANDI
