DECISION
The two Applicants in this matter were convicted of the following offences which were committed on the 27th August 1993:
1. The murder of Michael Meyers and his daughter Donne Meyers;
2. The kidnapping of Donne Meyers;
3. The robbery with aggravating circumstances of Michael Meyers's truck;
4. The unlawful possession of firearms and ammunition.
Michael Meyers was a farmer in the Elliot district and sold milk on a daily basis in the Transkei. He made use of a 3? ton truck with two large tanks of milk on it and was accompanied by two employees. he started in the town of Engcobo, where he delivered milk to certain shops every day. If there was any milk over he would then stop in villages and sell milk to individual customers. It was not his custom to follow a set routine and visit the same village on a set day as he feared he might be waylaid. His daughter Donne was with him on the Friday in question and had been with him for the previous two days as a heavy spanner had been dropped on his foot and injured it. She was there to help with deliveries.
On the day in question he was selling milk at the village of Xhangara. The two Applicants arrived there having, on their versions, been brought to the village by their commander one Thanduxolo (an alias). Shots were fired and the truck was driven away by the two Applicants. Michael Meyers was left lying in the road having been shot in the stomach with a shotgun. He was taken to hospital but the wounds turned septic and he died ten days later on the 6th September 1993. Donne Meyers was in the truck when it was driven away. On Kulman's (second Applicant) version he had shot her in the head, below the left eye, whilst attempted to shoot her father and she was unconscious. She was taken to the Bashee River some fifty to sixty kilometres away where her dead body was found by the police during the course of the afternoon. The post-mortem report refers to an entry wound on the left cheek and extensive brain damage; there were also numerous lacerations and stab wounds on her body. On the Applicants' version they handed her over to Thanduxolo, who subsequently shot her.
The Applicant Thutha gave evidence during the course of the trial; Kulman did not do so. Neither of the Applicants gave evidence in mitigation of sentence. Evidence was, however, given on their behalf by a Mr Mnqojana, the Deputy Secretary of the Regional Executive of the Pan Africanist Congress (PAC) to the effect that he knew the two Applicants (accused) and that they were both APLA soldiers; he also said that the name Thanduxolo (the APLA Commander the Applicants alleged had given them instructions to carry out the operation) was familiar to him and he believed he had been killed in a subsequent operation. The trial judge stated that he was prepared to accept that the Applicants were trained members of APLA as stated and they considered themselves to be soldiers under the command of their superiors fighting a war of liberation against apartheid and that they were not motivated by personal gain or greed. He then said:
"It can, in my view, be accepted that the accused were given orders to obtain transport for APLA and that they identified the truck belonging to Mr Meyers as an appropriate target. In committing the act of robbery of the truck therefore they were obeying orders as soldiers of APLA and were acting in furtherance of a political objective. To this extent therefore their moral blameworthiness in respect of the robbery was reduced and I will take this factor into account in assessing what I believe to be an appropriate sentence in respect of the robbery with aggravating circumstances, namely count 2.
It is necessary for me, however, to say something in respect of Mr Mnqojana's statement that the taking of the ruck could be regarded as justifiable if the owner was "perceived as belonging to the enemy." Neither of the accused have stated that they perceived either Mr Meyers or his daughter as being members of the enemy. If, however, they targeted the truck on this basis, as would appear to be the case, then it would appear that the only basis for their perception would be the fact that Mr Meyers and Donne were whites."
Having quoted an extract from the judgment of Shearer J cited in S v MacBride 1988(4) SA 10 (A.D.) the judge said:
"Similarly, in this case, the political affiliations of Mr Meyers and Donne are unknown. For all the accused knew they might have been strongly opposed to the then system of government. The accused condemned and punished them without giving them an opportunity of being heard, presumably because of their white skins.
I turn now to count 1 which concerns the murder of Mr Meyers. In my view the shooting of Mr Meyers was clearly effected in the course of the robbery. This being so I am prepared to accept in favour of the accused that in shooting him they believed they were acting in furtherance of their political objective to obtain transport for APLA. Even accepting this, however, the murder of Mr Meyers remains an extremely serious offence. It is clear from the evidence that Mr Meyers was shot whilst he was unarmed in the course of the robbery. The shooting by the accused of an unarmed man who was serving the local community by selling milk to them was cold blooded and callous. The accused acted towards him with utter disregard for his life. There was no need to kill him in order to achieve their purpose of obtaining the truck."
It is clear from the above passages that no mention was made at their trial of the alleged instructions to kidnap Meyers or of his alleged membership or connection with the AWB.
It appears fro the judgment that the version put forward by or on behalf of the Applicants was that their leader had himself committed the offences of which they had een convicted.
Zama Thutha, in his amnesty application described himself as a PAC cadre and applies for amnesty in respect of two counts of murder, kidnapping, robbery and possession of an unlicensed firearm committed on the 27th August 1993. He states that on that day in Umtata he, in the company of other cadres was ordered by Thanduxolo, who is a commander, to go with another cadre to fetch a truck which they found at Xhongara admin area where there were two whiles males; "we shot them and took the truck away with a white lady who was finally shot to death by their commander Thanduxolo." He said both victims died as a result of being shot at and named them as D Meyers, the lady, and Mike Meyers , the male. They were described as farmers who were selling milk at the time.
In setting out his political objectives he said that all these operations were conducted so as to make government to stop being hard on oppressed Africans and to ease oppression.
At the moment he did appreciate that what he did was not right, and he is sorry he had to do it. Firstly as a cadre he was trained to accept orders from his commanders, as failure to do so may result in being shot to death by his commanders.
All that he did, he did in order to liberate African people from the atrocities and oppression of the whites.
As the previous government was very cruel to blacks killing their defenceless people during riots and in detention, they believed that the only language government would understand would be to kill the whites.
He further stated these operations were undertaken through the approval of and the orders of his organisation.
The second Applicant, LK Kulman (Code name Maxwell Miya) described himself as a lieutenant in the Azanian People's Liberation Army (APLA) and he applied for amnesty in respect of two counts of murder, possession of a firearm, hijacking; kidnapping and robbery. he said three of them were given orders by Thanduxolo to attack Mr Meyers in order to confiscate his car and firearms. They were told the unit was short of transport and arms and ammunition. As a result of that attack two people were killed through their resistance. One was shot at the scene; the other was shot at Bashee River, the distance was approximately 1km from where the operation began.
In describing his political objectives he said that as it was well known that Africans were being oppressed in their motherland (Azania) they were trying to attract the focus of the State so as to see that the people were tired and angry of being oppressed by the settlers in their own country.
He said he was ordered to carry out the operation by his commander whom he only knew by his code name Thanduxolo.
In a subsequent application where reference is made to three incidents he stated that on 27 August 1993, they attacked two white persons with intention of disarming them. He named them Mike and Donne Meyers and when stating the political objective sought to be achieved he said that "whites had to be killed in order to attain our liberation." He later stated that their land Azania was usurped by the whites through the barrel of a gun and a gun had to be used to reverse the tragedy.
In this application he said the order was given by the Umtata Regional Commander, Comrade Mandla who is from Cape Town. The order was they should disarm the couple and to kill if they encountered resistance.
In an affidavit dated 16th April 1998, that is the first hearing date, Kulman stated that Thanduxolo was also known as Mandla. He here for the first time mentions Meyers's alleged membership of the AWB and that his instructions were not to kill him but to bring him to Thanduxolo who wanted to interrogate him before dealing with him, but that they were to kill if they were in danger. The first Applicant Thutha, filed a similar affidavit in which he admits shooting Mike Meyers and confirms Kulman's affidavit.
The first of the Applicants to give evidence before us was Kulman. He commenced his evidence by confirming the affidavit which had just been handed in but was thereafter unable to give any logical or believable evidence as to why there had been such changes in his versions. He claimed to have taken no interest in his trail; to have given no instructions to his counsel nor to have taken any part in the change of plea. He endeavoured to explain his failure to originally mention Donne Meyers having been shot at the scene because the space on the paper was too small or that he did not notice he had not stated he shot her. The same with the instructions which he was allegedly given. Another reason he advanced was to save APLA bases in the Transkei at a time when, as he later admitted there were no such bases and APLA was already being incorporated into the SADF.
His evidence as to why they could not have taken Mike Meyers, wounded though he was, in the truck with them in accordance with their orders but elected instead to take the wounded Donne Meyers with them is totally unacceptable. In this regard he at first said she was unconscious on the floor of the car, later he said she was bending forward with her head on her knees. His explanation for shooting Donne Meyers was that he thought her father was reaching for the cubbyhole to get a gun and he thus shot at him. He then sat in the car as a passenger, that is behind the cubbyhole, yet nevertheless never looked to see if there was a gun there. I do not propose to deal with all the defects in his evidence; suffice it to say that the numerous conflicts in his evidence rendered it unacceptable.
There were of course also conflicts between his evidence and that of his co-Applicant Thutha, in particular with regard to Donne Meyers and her condition after the shooting and on arrive at Bashee. A further factor to take into account is his evidence that the APLA position is clear, the whites were oppressors and that is why he would also have killed - nothing would have stopped him - he was going to go ahead and do it. The fact that Donne Meyers was a child made no difference.
"I could have killed her because I do not see a difference in the age difference. I do not see a difference in the age whether a person was young or older, they oppress the same way. There is no difference between a small snake and a bit snake, they are both poisonous and the snakes deserve, both deserve to be killed. She could not have escaped or had been saved because she was an oppressor. She also had a lot of benefits from the privileges she enjoyed from the previous government. I did not enjoy those benefits as an indigenous person of South Africa. She was the pillar of the government because directly or indirectly she supported the government. Those were the reasons why I would have executed her."
A final factor to comment on is his attempt to explain that he knew the father could not leave the daughter behind alone in the car when there was no way he could have known that Donne Meyers was the daughter or would be in the car because she was only there on this occasion as a result of injury to his foot her father had suffered.
We also find it impossible to believe that if kulman had shot at Mike Meyers because he believed he was reaching for a gun in the cubbyhole that he did not open the cubbyhole during the fifty to sixty kilometre drive to the Bashee River. It is perhaps worth recording that at one stage during his evidence he said:
"I did not know what Mike was trying to reach for at his cubbyhole."
The first Applicant (Thutha) confirmed the contents of his affidavit. He was however not able to remember if his affidavit had been read to him on the day before when he signed it; his attorney told us this had been done. After an adjournment to enable this to be done again he confirmed the affidavit. In this affidavit he said he was the person who shot Mike Meyers. He also confirmed his belief and participation in the armed struggle.
He also had problems with what was written in his application form, which conflicted with the evidence he gave and whether his attorney had read it to him. It appears grossly improbable that his attorney would not have done so, in particular paragraph 9(a)(iv) where he said:
"On the 27th August 1993, in Umtata in North Crest in the company of other cadres, one Thanduxolo who is the commander arrived and ordered me to go with another cadre to fetch a truck, which we found at Xhongara Admin area, where there were two white males, we shot them and took the truck away with a white lady who was finally shot to death by our commander Thanduxolo that is all."
His attorney confirmed that he had gone through the application with him.
In his evidence before us he said that Thanduxolo told him on the day in question that he was going to meet someone referred to as Maxwell Mneza (who was the second Applicant Kulman) and would get all the information from him. He later met him and was told where they were going to go. Be that as it may, when he gave evidence he said that the matter about being told in Umtata that he was going to take a truck is not true. He was told when the truck was already in view at that place where they were going to take the truck. What he does not explain is why, if he had no idea what they were going to do, he took possession during the journey of a loaded home-made weapon, which he had made himself, hidden in a sack of potatoes so it would not be seen. When questioned he said he did not know that Mike Meyers was going to be kidnapped or what they were going to do when they got there. What he did know was that they were going to get he truck. A short while later he said that before they got to the truck Kulman told him they wanted the white man and the truck. He had heard Thanduxolo speaking to Kulman on the way there and they said they wanted information from him. The fact that they were not going to get information was all he was concerned with after he shot Meyers. Thanduxolo picked them up and drive them to where the truck was. The two Applicants went to the truck leaving Thanduxolo following them. Thutha was told to stand behind the truck and Kulman went to the front on the passenger side. Thutha heard a bang. He explained:
"After that, after I had heard the noise, I could not differentiate whether it was my co-accused being shot or who it was. However, when I looked on the left side, I could not see my co-accused. I then went towards the right side of the truck. I saw Mike Meyers getting out of the truck. His right hand was behind him as he was getting out, as if he was trying to do something in the truck. I then thought that he was preparing himself to shoot me, because I could not see my co-accused who had been shot."
I then shot him. He fell to the ground, stumbled and fell on the ground. I went to him immediately and I noticed that he didn't have a gun with him. I went back to the truck. When I got to the truck, my co-accused was inside the truck."
During his evidence he said he did not want Meyers to see him with a gun. He took cover among the people buying milk so if Meyers started to shoot he would shoot the other people. He also said that when Meyers got out of the truck his right arm was stretched out as if he was pulling something which must have been heavy but he was standing properly and he was trying to pull something. This is not what one would expect of a man getting out a truck with a pistol in his right hand. He said there was a white person in the truck and Kulman had put her on the floor so that people could not see that there was a white person in the truck. He had her bent over so that people could not see her. She was on the chair bent over. They drove off and Thanduxolo passed them and signalled so he would know where they were going to meet. As this was approximately fifty kilometres away this is difficult to accept. When questioned he said Kulman named the place but he did not know the place as he was not from the area. This is one of the many conflicts between his version and that of Kulman. Perhaps the most striking conflict is that as to Donne's condition when they arrived at Bashee River. His version is that Donne was walking on her two feet but he could see she was resisting, he said:
"Because I also had to go and help to take her over, she had to be dragged to be taken there, she did not want to go ...... No she was not trying to fight. She was not trying to run away either but she was speaking English. I could not follow what she was saying."
Kulman in his evidence had said she was unconscious and had to be carried. Thutha changed his version later in his evidence when he said she was pulled by the arm by one of them. He also denied that he had said she spoke English.
Thutha also said he saw no blood on Donne; this of course conflicts with Kulman's evidence that he shot her under the left eye. He said he did not see any blood in the car and did not take notice of blood on Donne Meyers as he did not look at Boers, he did not care about Boers. He later said that the Boer is the oppressor and they (APLA) made sure they kill the Boer when they have gotten what they want from them. He explained that he obeyed orders because if he did not he might die as well.
He denied knowing about the money which he said was found in the truck. This conflicts with the evidence of Inspector Mate that the money was found in bags under his private parts. The Inspector also contradicts the evidence that there was an AWB insignia on the butt of the pistol found on Thutha and subsequently proved to be that of Michael Meyers. There was a further difference in that Thutha, at the time of his arrest made what seemed to have been a suspicious movement; Mete grappled with him and removed a gun from him. It was after this that he searched him and found the money. Mrs Meyers supported this as she saw the pistol on a daily basis.
I have not dealt with all the differences and conflicts and improbabilities in and between the evidence of the two Applicants. I will, however, outline some of them:
(a) if they expected Mike Meyers to be at the scene and he was not visible, why go to the passenger's door;
(b) if their instructions were to capture Mike Meyers for questioning, why shoot him when he was pulling something heavy out of the truck;
(c) why leave the wounded Mike Meyers lying there and take the wounded Donne Meyers with them, when there was no evidence indicating that they knew of the relationship between them;
(d) why the conflict as to Donne Meyers's condition on arrival at Bashee River.
They stressed the importance of carrying out orders. Their order was to take the truck which they did and to kidnap Mike Meyers for questioning. They were told to kill if they met resistance. There was no resistance from the Meyers. Mike Meyers was not armed at the time when Kulman shot at him; he seemed to be indicating where his forearm was as he had been told to. Similarly, Thutha was in no danger standing among other people while Mike Meyers was apparently pulling something out of the truck.
The two employees who were accompanying the Meyers, Manjbani and Ndoda both gave evidence to the effect that Mike Meyers was standing at the side of the truck whilst they were selling milk. Donne Meyers was inside the truck. Manjbani also said that after he heard a sound (gunshot) in the front of the truck, Mike Meyers went to the driver's side. This man (Thutha?) went around the left side and after doing that he went to the driver's side. Before Meyers could even open the door this man shot him. Meyers fell and he shot again. Manjbani's evidence became confused thereafter and he said the same man shot both people. They both denied Meyers was in the truck at the time of the first shot or thereafter.
The doctor who performed the post-mortem on Donne Meyers testified that the injury to the head, that is a completely crushed skull, would have caused instantaneous death. He said it was possible that there may have been more than one gun shot tot he head but later dealt with the details set out in his report as to an entry wound noted on the left maxillary area, fractured maxillary bone and floor of left anterior cranial fossa, entering brain. This he said was the entry wound of the bullet which blew the skull to pieces and would have caused immediate death. The other injuries to the body would have been caused by two different instruments, one sharp and one blunt.
A further witness was Makase who was working at a brickyard on the day in question. He spoke of seeing a truck arrive some 2 kilometres away and hearing 3 shots. He did not see any other vehicle in the vicinity at the time. When questioned he said he did not concentrate on the truck. The final witness was Pangele, who was at the time a member of the Transkei Murder and Robbery unit. He received a report and went to the scene where Donne Meyers was found. On the way he spoke to Makase who showed him where the truck stopped. He estimated that as being some 200m from the brickyard where Makase had been working; the body was some 40 to 50 paces away.
It is on this evidence that we have to decide whether the Applicants have met the requirements set out in Section 20 of the Act. We deal firstly with the question of whether the Applicants have made a full disclosure of all relevant facts as required in Section 20(1)(c). We are satisfied that they have not done so. There are conflicts and improbabilities in their evidence which have already been referred to. There is also the fact that they conflict in almost every respect with the evidence of all the other witnesses. We have not dealt with the alleged assaults by the police which were also denied and intend to make no finding in this regard. We do, however, consider it relevant that the version put forward by them differs from that put forward at their trial and in some respects with that set out in their applications. No reasonable explanation for these differences have been offered by the Applicants.
The most important factor in this regard is, in our opinion, the evidence as to what happened to Donne Meyers. There is a complete difference between the two Applicants as to her condition on arrival at the Bashee River. Kulman talks of a girl with a bullet through her head, groaning and unconscious. Thutha heard none of this and saw no blood despite the fact that he was in the truck with her and walked with her to where she was left. On both versions she was taken to a spot pointed out by Thanduxolo where they left her with him. On Kulman's version she had to be carried there in her unconscious state. On Thutha's evidence she was led there, although she did not want to go. They went back to the truck and on the way heard a shot. Thutha saw Thanduxolo shooting there. Thanduxolo then came to him at the truck and gave him the gun. There is no suggestion in the evidence of either Applicant as to how Donne Meyers came to sustain the numerous injuries found on her. The only inference one can draw is that there was at some time a prolonged and brutal attack on her during the course of a struggle. There is no suggestion that this happened when they left her with Thanduxolo, although Kulman did suggest that Thanduxolo had blood on him and was carrying a weapon which might have been a knife. We do not accept this. The only evidence that Thanduxolo was involved is that of the Applicants, who at first blamed him for the shooting of Mike Meyers. There was no evidence of shouts and screams from Donne Meyers while she was being brutally assaulted by Thanduxolo who would have been using a knife and a blunt object. They did not see or hear any of this although Thutha saw him shooting.
We are of the view that the Applicants have not complied with the provisions of Section 20(1)(c) and on that ground the applications should be refused.
Turning now to the provisions of Section 20(1)(b), that is that the act to which the application relates is an act associated with a political objective committed during the course of the conflicts of the past in accordance with the provisions of sub-sections (2) and (3). On their evidence before us, the instructions they received from their leader on behalf of their liberation movement (APLA) was to kidnap Mike Meyers so he could be questioned by their leader and to take his truck. They were to kill if they were in danger. As we have already said Mike Meyers was not armed at any relevant time, neither could either of the Applicants have believed they were in danger. Furthermore, after having shot and wounded Mike Meyers they made no attempt to ascertain if he could still speak, as he could, or to carry out their instructions and take him to their leader. We are satisfied that in shooting Meyers as they did they were not acting on behalf of APLA or on the instructions of their leader, if Thanduxolo was in fact their leader. There can, in our view, be no political objective in the brutal killing of Donne Meyers nor of her kidnapping. There was no evidence that they knew she was the daughter or that she could supply any useful information to their leader. There was thus no known political objective for taking her from the scene. Their excuse that she was in the car and they could not remove her is totally unacceptable; even if there had been, the killing was grossly disproportionate to any such objective. We are accordingly of the view that having reference to the criteria set out in Section 20(3) of the Act these killings cannot be regarded as an act associated with a political objective.
We are prepared to accept the trial judge's conclusion that the act or robbery of the truck and contents was an act in furtherance of a political objective. The same would apply to the unlawful possession of firearms and ammunition on the day and place in question.
The applications for amnesty in respect of the murder of Michael Meyers and his daughter Donne Meyers is REFUSED. The application in respect of the robbery with aggravating circumstances of Michael Meyers's truck and its contents and the unlawful possession of arms and ammunition in the Transkei on the 27th August 1993 is GRANTED.
SIGNED AT CAPE TOWN ON THIS 21ST DAY OF MAY 2001
JUDGE A WILSON
ADV N SANDI
MR I LAX
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