: DECISION
The three Applicants in this matter were convicted in 1993 of the robbery of a gun shop in Isipingo and sentenced in respect of Shangase and Kweyama to six years imprisonment and in respect of Mkhize to seven years imprisonment. They were imprisoned together and applied for indemnity; they were notified by the Department of Justice (Office for Indemnity, Immunity and Release) that their applications related to offences committed after the cut-off date and could not be considered for indemnity. They were, however, informed of the proposed new legislation (the Promotion of National Unity and Reconciliation Act) and that their applications would possibly be considered for amnesty in terms of this Act. They, however, heard nothing further from the Department of Justice in this regard.
All three of them then filled in applications for amnesty in terms of the present Act and these were submitted via the prison authorities to the Truth and Reconciliation Commission. They were thereafter given notice of the hearing to consider their applications. All three appeared and duly gave evidence with regard to the procedure set out above, as well as to the offence which they had committed.
Unfortunately, due to an apparent administrative error the only amnesty application form included in the bundle was that of Shangase, the other two being untraceable. In these circumstances the Committee decided that Kweyama and Mkhize should complete fresh applications which would be considered by us. This was duly done. There was no objection to this from the Leader of Evidence and the victims, who had been given notice of the hearing but were not present and were unrepresented.
The application was in respect of a robbery at the South Coast Armoury (Isipingo Gun Shop) where eleven firearms and five magazines were stolen. The political objective was to obtain weapons to protect ANC members in the KwaMakhuta area from attacks by members of the ANC. The operation was approved by their Unit Commander Sipho Gumede, who told them of the gun shop. There were five persons in the group who carried out the robbery. Of these, Kweyama was the driver of the vehicle used and he remained in the vehicle while the robbery was carried out. The other four were all armed with weapons that their Unit Commander had borrowed on their behalf and which they subsequently returned to him.
The only one of the Applicants to go into the shop was Mkhize and he, in his evidence, stated categorically that the only thing they took from the shop was what they intended to rob, that is the firearms. No money or other things were taken. The other two Applicants who had checked the contents of the bag which was taken from the shop gave evidence as to what was taken from the shop; this confirmed Mkhize's version. The relevance of this is that at the criminal trial a list of stolen goods was produced; this was apparently drawn up by an employee who gave evidence. This list included R2 324,00 in cash, 45 more magazines, holsters, gun oil, gun bags and bullet heads. He apparently did not see these other items being taken but they were missing afterwards as was the money, this being the takings for the previous three days which had not been signed for by his employer as was the normal practise. No such evidence was led before us, nor was the evidence of the Applicants challenged in this regard. The Applicants have at all times admitted robbing the shop and stealing the firearms and magazines. There was nothing to stop them saying they took the other items for the use and benefit of their party and that they handed them, including the money, to their Unit Commander. In these circumstances we accept the evidence of the Applicants and are satisfied they have made full disclosure as required in terms of the Act.
The Members of the Committee are satisfied that there was a continuing struggle in the area in question at the time. We accept the Applicants' evidence that they committed this act on the instructions of their Unit Commander and that they, as members of the ANC, were acting with a political objective in terms of Section 20 of the Act.
In these circumstances the Applicants are GRANTED amnesty in respect of the robbery at the South Coast Armoury (Isipingo Gun Shop) on 22nd April 1993.
SIGNED AT CAPE TOWN ON THIS 13TH DAY OF MARCH 2001
JUDGE A WILSON
JUDGE D POTGIETER
ADV N SANDI
