: DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995. The Applicant is seeking amnesty for the following crimes:
1. The murder of Joshua Meshack Mokoane;
2. The murder of Reginald Moepeng;
3. The attempted murder of Owen Tebogo Daza;
4. Robbery of Owen Tebogo Daza of an amount of Five Thousand Rand (R5 000.00);
5. Robbery of a Toyota Cressida vehicle bearing registration and numbers BDJ236T belonging to Springbok Security Company;
6. Armed Robbery of the former Transvaal Provincial Administration ("TPA") personnel of an amount of Eighty-Nine Thousand Rand (R89 000.00) at Zonkizizwe, Heidelberg, in or about October 1992.
7. Unlawful possession of an unlicensed firearm and ammunition;
8. Robbery of two (2) firearms and two (2) shotguns;
9. The killing and/or attempted killing of an unknown number of members of the Inkatha Freedom Party ("IFP") at Zonkizizwe Township during April 1991.
The Applicant was initially sentenced to death for the murder of Mokoane and Moepeng, which sentence was later commuted to life imprisonment. Although Daza was not killed in the attack he was subsequently killed in an unrelated incident. His widow Tandi Irene Daza attended the hearing. She, however did not testify. The offences arise out of two (2) separate incidents.
THE FIRST INCIDENT: An attack on Springbok Patrol Personnel
The first incident occurred at or near Orange Farm in the district of Vereeniging on or about the 18 September 1992. On that particular day the Applicant and companions viz. Thabo, Joseph Makari, Samuel Baloyi and Shadrack Mpeke attacked Mokoane and Moepeng. At the time the two (2) were escorting Daza who was employed as a sales representative by the Premier Milling Company. Apparently, Daza had previously been robbed of money in the course of his duties and his employers hired Springbok Patrol Security company security guards to protect him. As the result of the attack which was carried out with firearms Mokoane and Moepeng died instantly. Daza was only injured and did not die. The Applicant states that the attack was carried out not as an act of robbery but it was to retaliate against the Springbok Security Company personnel. He states that they sided with the police and IFP members in the conflict between the IFP and the African National Congress ("the ANC"), of which he was a supporter.
We intend to summarise the background. According to the Applicant in 1990 the Zonkizizwe area in the East Rand was engulfed in conflict between members of the ANC and the IFP. The Police were not impartial in the conflict because they supported IFP supporters who were killing ANC activists, and members of the community generally supported the ANC. The Applicant claims that at the relevant time he and his companions were members of the ANC and towards the end of October the ANC leadership relocated ANC supporters to Polla Park Squatter Camp in Thokoza. Polla Park was also engulfed in political conflict between the ANC and the IFP supporters. Soon thereafter the Applicant left Polla Park and went to live in Sebokeng which area was also affected by violence. The Applicant goes on to say that by then his leader, Msoke, had been killed by IFP supporters. Prior to his death Msoke, whom the Applicant regarded as his leader, told him that there was no turning back in the struggle against IFP and its covert master-minders. He urged him to "continue with the struggle". Meanwhile people were being attacked in taverns and shebeens and the constitutional negotiations between the ANC and the erstwhile regime had stalled. He claims that in this context it was widely believed by residents and ANC supporters that the Springbok Patrol Security Company personnel were assisting the IFP and Security Forces to attack and kill them. It was on the basis of this belief that Springbok Patrol's personnel were seen as part of the enemy. It was also believed that they supplied IFP supporters with weapons. The Applicant states that he had also been told by Msoke before he died that he should lead the people to defend themselves and he was very determined to comply with the order. An order had also been issued by the community that Springbok Patrols' personnel should be captured and, indeed, on a previous occasion one of them was captured in Katlehong. He was alighting from a hippo, a police vehicle, and was trying to arrest ANC supporters.
At some stage a meeting was held by Street Committee members and it was decided that the Applicant and others should capture the Springbok Patrol Security Officers. The Applicant was the leader of the group. They accordingly went out. He states that the order was to shoot and kill them. They found them in the township and opened fire on them, hence the two (2) murders and the attempted murder of Daza whom they believed was also an employee of the Springbok Patrol. The Applicant says the victims' vehicle was taken because it was required to fetch arms in Mozambique to defend ANC supporters. But on the 19 October, the same year, the vehicle was recovered by the Hyper Square police and the Applicant was arrested. He was charged, convicted and sentenced to death. The Applicant describes himself as the person who was sat the forefront of the events at the scene of the shooting. He commanded the three (3) men to raise their hands but as they tried to take out their firearms he shot them with a Z88 9mm pistol. He states that one of this co-perpetrators, Elias Matari also had a 9mm pistol and may have fired a shot(s) as well.
THE SECOND INCIDENT: Armed Robbery at Zonkizizwe TPA Offices on 5 October 1992
Before the vehicle referred to above was recovered the Applicant and his comrades used it to carry out an armed robbery of eighty-nine thousand rand (R89 000.00) at the former Transvaal Provincial Administration ("the TPA") offices, Zonkizizwe in the East Rand. The TPA was identified as part of the enemy because one of its officials, Mr van Dyk (the Applicant is not entirely sure about the name) was frequently seen in the company of IFP members. They wanted money to buy arms in order that they could protect ANC supporters and residents in general who were being targeted. No person was injured in the attack. The Applicant had used the same firearm when he attacked the Springbok Patrol personnel and Daza. The Applicant was convicted and sentenced to ten (10) years imprisonment for the armed robbery.
Under cross-examination by Advocate Makhubela on behalf of the victims, the following was elicited from the Applicant.
The attack on the Springbok Patrol employees took place early in the day at about 10h00;
the victims' vehicle did not bear a Springbok Patrol's mark;
the victims were wearing Springbok Patrol uniforms and only one of them was wearing the notorious clothes with green colours;
at the time of the attack the victims' vehicle was parked and they were seated inside the vehicle.
It was put to the Applicant that because Daza worked as a salesperson he was usually possessed of large sums of money. It was also put to him that Mokoane and Moepeng were employed by the Premier Milling Company to escort Daza and this he could not dispute. The Applicant further testified that they deliberately did not kill Daza because they knew that he was not an employee of the Springbok Patrol. He went on to say that the two (2) were killed because they were wearing green clothes and Daza was in civilian clothes. It was suggested to him that the two were attacked because they were escorting Daza who had money in his possession, and shooting them would obviously deprive Daza of the necessary protection and then he could be robbed of the money. This the Applicant denied. A very simple question as to who the Applicant was accountable to could not be answered by the Applicant and in the end, with the intervention of the Chairperson, elicited the following response:
"Comrade Maloyi in Vosloorus, we were reporting to him, Comrade Essau Mpempi and Comrade Eric Chikila, those are the comrades we knew".
Further questioning of the Applicant to ascertain his alleged association with Self-Defence Units ("SDUs") revealed that he had a very poor knowledge of how the said structures worked. The Committee has received in-depth information in numerous hearings on how these structures operated. We are also quite familiar with the reporting system within which they operated. At the very least, the Applicant's answers were vague and he would frequently request that very simple and clear questions be repeated.
At the end of his testimony we were not satisfied that he was being truthful. We do not wish to repeat all the evidence as the record very loudly speaks for itself.
What further speaks for compounded matters is the fact that large sums of money had been robbed on separate occasions and it was not entirely clear to whom the proceeds of the robberies were handed over. He was generally evasive and at some point said he gave all the money to members of a Street Committee. Interestingly enough, he states that when he handed the money over to the Street Committee only two members were there to receive it. It was Essau Mpempi and Hlongwane (he claims that he does not know their full names and addresses); the Applicant did not receive any support from his so-called comrades during his trial and only one comrade, Lobusa, came from Katlehong to visit him in prison; the Applicant does not know, and he also never made enquiries to ascertain, if the money was in fact used to buy weapons and he never revealed in court that the robberies were carried out with the aim of securing money to buy arms to defend themselves. We note from court records that the trial was held well after the 1994 historic elections for a new Government of National Unity and, at least, one would have expected the Applicant to tell the Court that he acted with a political objective. That he never testified to this as the real motive for the robberies further accentuates our view that it was just a common robbery with no political objective.
THIRD INCIDENT: Attacking IFP Supporters in 1991
The third incident is one where the Applicant claims that during April 1991 he attacked members of the IFP at Zonkizizwe Township in the East Rand. He states that he does not know if any person was killed or injured. We have already expressed our disbelief that the Applicant ever acted with a political motive and we do not intend to repeat ourselves. In the circumstances, we are not satisfied that such an attack ever occurred. There is no indication that at the time in question he was an activist of any level of involvement. Accordingly his application for amnesty in respect of the attempted murder cannot succeed.
The application is therefore REFUSED for all the offences.
SIGNED AT CAPE TOWN ON THIS 2ND DAY OF MARCH 2001
ACTING JUDGE D POTGIETER
ADV F BOSMAN ADV N SANDI
