DECISION
We are now dealing with applications for amnesty in respect of a number of armed robberies which acts were committed, primarily by Vontjie Mzimkulu Moti, in the Gauteng region at different times (as we shall set out in the summary of the evidence). Thapelo Patrick Maseko was only involved in one of these incidents viz the theft of R3 million at the Fidelity Guards Depot in Johannesburg during or about 1990.
Moti and Maseko are seeking amnesty for the following offences:
1. Armed robbery of an amount of about three million rand (R3 000 000) at Fidelity Guard Depot in Johannesburg during or about 1990.
Both applications are being opposed by Fidelity Guards, a security company, on the grounds that the offences committed are not "acts associated with a political objective" as required by the Act.
2. Moti is also seeking amnesty for several armed robberies:
2.1 The armed robbery of Fidelity Guards in Lans Industria, Gauteng, on or about 16 July 1988.
This was a robbery of money in transit under guard of the Fidelity Guards security personnel. All the members of Moti's group were armed. Peter Moshoene (who died on 11 October 1990 having been killed by the Police), Themba and Moti had .357 revolvers. The rest were armed with pistols.
2.2 Armed robbery of jewellery and diamonds worth R50 000 from a jewellery and diamond shop in Bruma Lake, Gauteng, in or about 1991.
The operatives were Moti, Peter Mokoena, Peter Nkosi and Themba. Moti states that he received information from his friend, Bheki Tshabalala, that there were some diamonds in the jewellery shop in question. Bheki said he was quite prepared to buy them from any person who stole them from the shop. Moti conveyed this information to Peter Mokoena. Moti and Themba subsequently stole a BMW vehicle in order to carry out the attack. Unfortunately for them the car was involved in a collision but they still managed to escape with the jewellery. They returned to Peter Mokoena who ordered them to tell Bheki to contact him with the view to selling the jewellery to him.
2.3 Armed robbery of R455 195 from First National Bank ("FNB") personnel at Dube, Soweto, on or about 7 December 1991.
The operatives were Moti, Brian and Themba. It was the same squad of Moti and Themba who used AK-47's, pistols and a vehicle to effect the robbery. Moti states that all the money was handed over to Peter Mokoena who had issued the order for the robbery to take place. There were no casualties in the operation.
2.4 The armed robbery of cash in transit from Coin Securities at World Trade Centre on or about 31 December 1991.
Moti, Peter Mokoena, Peter Nkosi and Oupa used a hijacked microbus to carry out the robbery. According to Moti they confiscated money boxes and withdrew after there was an exchange of fire with Coin Securities' personnel. He does not know if any member of the personnel was injured or killed. Oupa was shot dead as they were trying to escape. He says the robbery was a failure because they left both the money and their guns and ran for their lives.
2.5 Armed robbery of money at Queen's Superior Market, Gauteng, in or about 1992.
Moti, Peter Mokoena, Peter Nkosi and Archie Khumalo were the operatives who executed this attack. Archie was injured in the fight and later died in hospital. All the money, according to Moti, was handed over to Peter Mokoena at a pre-arranged rendezvous where they met after the attack. He does not know how much was robbed as they did not count it but it was a large amount of money.
2.6 Armed robbery of cash in transit from Fidelity Guards personnel at Dube, Soweto, on or about 11 February 1992.
The robbers were Moti, Peter Mokoena, Peter Nkosi and Themba Radebe. The robbery came about because Peter Mokoena told Moti and his companions that he had received information that on a certain day and time the Fidelity Guards personnel were going to collect money from the Soweto Standard Bank branch. At the opportune time they confronted the personnel, using a stolen microbus and firearms. An exchange of fire ensued and the personnel were overpowered. In the incident Peter Nkosi was injured, albeit not seriously. Moti and his companions withdrew with the money which they handed over to Peter Mokoena at their rendezvous after the attack. He is not sure if any member of the Fidelity Guards personnel was injured.
2.7 An armed robbery of money from the Fidelity Guards personnel at or near Elsburg, Johannesburg South on or about 10 June 1992.
The attack was carried out by Moti, Peter Mokoena, Peter Nkosi and Themba Radebe. They were armed with rifles and handguns. The target was attacked in front of a Trust Bank branch. Moti says they used a white panel van and as the personnel was about to go they swiftly abducted one of the members of the security personnel. They took him a distance away from the others and used him as a shield. He was not injured. The money secured was handed over to the commander viz Peter Mokoena whereafter they dispersed and returned to their respective homes.
2.8 Murder and armed robbery of R1.7 million from Fidelity Guards personnel at East Avenue Bottle Store, Eldorado Park, Gauteng, on or about 11 December 1990.
The robbers were Moti, Peter Mokoena, Peter Nkosi, Brian Dongo and Nadi. In the morning of that particular day Moti was called by Peter Mokoena to his home. On his arrival there Moti found that there was a blue and white Ford bakkie. It was parked outside and members of his gang were also there. Moti states that he was briefed about a contemplated attack and given an AK-47 rifle. They all left for the target area but they were quite early as the Fidelity Guards personnel had not yet arrived. When the personnel emerged carrying boxes of money they confronted them. An exchange of fire ensued and one of the employees was killed. Moti and his companions took the money and later handed it over to Peter Mokoena.
2.9 Moti further applies for any offence or delict flowing from the abovementioned incidents.
THE INVOLVEMENT OF THAPELO PATRICK MASEKO
For the sake of convenience and reasons that will become apparent as we traverse the evidence in this matter, we intend to commence our decision with the Fidelity Guards Depot incident in which both Applicants were involved. Before we do so, we need to briefly deal with the question of the alleged political loyalty of the Applicants at the relevant time. We hasten to state that Maseko previously appeared before the Committee and sought amnesty for a number of crimes, primarily robberies, which he carried out on behalf of the Azanian People's Liberation Army ("APLA"), the military wing of the Pan Africanist Congress ("PAC"). In many, if not all, of the cases he was granted amnesty. This is now one of the last incidents in respect of which he is seeking amnesty. We do not deem it necessary to repeat his profile in the erstwhile military wing of the PAC but suffice it to say that the Committee has consistently accepted that he acted on behalf of APLA when the offences were committed. (We shall deal with his evidence in a moment). Briefly, Moti claims that during the time he was involved in all the robberies and other incidents he was a member of APLA and that he executed the acts on its behalf. (We shall later deal with his evidence in extenso). We now proceed to deal with the incident in which both Moti and Maseko were involved.
1. The armed robbery of the personnel of Fidelity Guards Depot personnel of an amount of R3 million rand in or about 1990 in Gauteng.
Here can do no better than give the ipsissima verba of the evidence of Maseko where he testified that:
"First and foremost, these people, they were not APLA members, most of them and they were people who were working inside the country although they were not APLA members and then somebody by the name of Vincent Mama, he introduced me to Peter who was the commander of that unit. And then after he introduced me to them we planned the mission - actually they had the mission before, they told me about it and then I went to see the place and reconnoitre the place. After reconnoitring we decided to go and execute the mission. And these other people I didn't know. Then we went to the place after we have seen the place. When we reached the place it was late. We had the uniform of that place so we pretended as if we were the people who were working there when we attacked the place. When we reached inside, there were so many boxes of money that I have never seen them in my life, my entire life. So we took a truck there and we loaded it.
Inside, when we were inside, I was observing at these people because it was for the first working with them. In that moment I realised that Vontjie, he was a good - and he can be a good commander, as I was a commander and observing him at the same time, doing my job and observing at the very same time, I realised that Vontjie really could be a good APLA member and I was intended to recruit him into APLA because they were not APLA.
After our mission we never - actually we didn't succeed because even before we went outside the police came, I don't know how did it come that the police came and then there was a fight there. We started shooting. Actually they started shooting and we shot back until we lost one of our comrades who was in the valley and then we lost almost everything because now the fight was too hot. We had to leave everything, the money, even including our comrade who happened to be dead inside the Kombi and we left almost everything and then we ran, we went different directions.
And then the following day, because at that day we never went to our RV, we went different places and then the following day I met with Peter. He told me all the comrades are there besides Brian who was shot on the spot. That was all, because we lost everything. That is it."
Under cross-examination the following was elicited. The information that Moti and his group were involved in robberies was conveyed to him by Vincent Mama who was not a member of APLA as such, but some people within APLA used him as a courier. Peter Mokoena and Brian were the only members of the group who were known to him but they were not APLA cadres at all. They were introduced to him by Vincent and he had known Moti for many years because he (Moti) lived in a street very close to a street where his (Maseko's) wife lived. But he did not know him very well. He had never discussed political matters with him and did not even know his stand on such issues. With the exception of Peter, members of Moti's group id not know that Maseko was an APLA cadre. He never discussed the real purpose of his presence in the group with other members and all discussions took place between him and Peter, the leader of the group. He convinced Peter that if the robbery was a success the proceeds would be forwarded to his superior, Junior, in Botswana to assist APLA to continue its struggle against the regime.
Maseko further testified that he never saw the members of the group again because when the robbery failed they all ran in different directions. He only saw Moti in prison in 1996 and Moti never became a member of the APLA Repossession Unit of which he was the national coordinator. During the time he was the national coordinator of the highly specialised APLA unit, viz Repossession Unit, none of the members of Moti's group joined and he never received any proceeds of robberies from them and he did not again have dealings with them. He states that as head of the Repossession Unit he was the one would have to approve if a particular person wished to join the ranks of the Repossession Unit and it could never have happened that a person joined the Unit without his knowledge (contrast with the evidence of Moti below). As head of the Unit he would receive reports, usually telephonically, every time members of his Unit carried out a "repossession" operation and the proceeds would be forwarded to him. When Maseko was questioned further on the matter he stated that things did not always work according to the strict political gain and discipline of the PAC in relation to the Repossession Unit. Some cadres of APLA and not necessarily being part of the Repossession Unit, would just do things on their own. (Later,and as we shall see, a former member of APLA High Command, Mbulelo Raymond Fihla, testified that some members were enriching themselves and others could not draw a distinction between the "normal" APLA operations and those of the Repossession Unit).
Maseko also testified that Vincent, although not a member of APLA, acted as a courier in a number of operations to transport APLA cadres from one point to another. In one of the robberies which was carried out by a Unit under the command of Maseko viz the Lebanon Eating House Mission incident, he was the driver but at no state was Vincent ever a member of Moti's group. According to Maseko, Vincent was not in a position to give orders to the leader of Moti's group. Further, no operation by Moti's group ever came to his knowledge and the Fidelity Guards Depot incident was the first and the last incident that came to his knowledge. The effect of his evidence was that none of the incidents in respect of which Moti is now seeking amnesty was carried out with his knowledge, either before or after the act.
In response to questions from the panel, Maseko said the following. Vincent never told him how well he knew Moti's group. At first Maseko was sceptical about the group and hence he decided that he was to be the only member of the Repossession Unit to be involved with them. When he went to reconnoitre the Fidelity Guards Depot he wanted to satisfy himself that it would be safe to launch the robbery there. He observed that there were many surveillance cameras in the premises and worse of all, the depot was in the basement of the building, thus meaning that it was not going to be easy to gain access. He conveyed his concerns to Peter who told him not to worry because they had a man who was employed there. He was going to organise balaclavas and Fidelity Guards uniforms in order that they could enter the depot. This he did because they were fetched by a Fidelity Guard company vehicle in Hillbrow where they stood and waited in the street.
Maseko's testimony was further to the effect that during the discussions with Vincent he said he only knew that Moti's group was making a lot of money from robberies but he did not tell him who was receiving the proceeds. There was also no indication in the conversation that someone else other than members of the group were taking the proceeds.
We have already alluded to the evidence of General Fihla, albeit in passing, who is presently a member of the South African National Defence Force ("SANDF"). During the relevant time he was the director of Military Intelligence in APLA. He knew Maseko very well. The gravamen of his evidence is briefly to the effect that the "programme for repossession" started in 1981 but the problem was how to implement it. It was fraught with so many problems that it was only in 1990 that a specific individual was appointed to coordinate its activities viz Maseko who was well-trusted in APLA circles. He reported to Junior who, for all intents and purposes, was responsible for all the necessary logistics to carry out the programme. Junior's department was a part of the High Command structure of APLA and needless to say, Junior (codenamed Andile Ntabeni) was a member of the structure. Fihla further states that he used to know Vincent as a courier and from the logistics role he played but he was not supposed to have anything to do with the Repossession Unit and its activities. He is not quite sure if Peter Mokoena, whose real name was Diseko Mogwate, is the name of a person he used to know as Diseko (surname unknown). The Diseko he used to know was deployed in the country in 1987 as an APLA cadre. He was injured during 1991 and did in 1992. It is hard to imagine that this could be Peter Mokoena because the Fidelity Guards Depot robbery occurred in 1990 and the evidence is that Peter was shot and died on the scene. But whatever the case may be this is not very relevant and, in fact, unnecessary for the Committee to determine. A great deal of Fihla's evidence confirmed that of Maseko in regard to the then APLA strategy to politicise criminals and then make use of their skills to conduct "repossession" operations. He also testified to the problem which existed at the time whereby cadres who were not supposed to be involved in "repossession" operations would be involved. There were also those who enriched themselves. As he put it:
"Some of the individuals tended to be corrupted which is true by the mere exposure to such resources as money and vehicles."
He proceeds as follows:
"They were driving cars which even the commander of APLA was not driving. They were staying in houses which even the Chairman of the PAC could not afford and this was basically the anarchy that concerned us and we were not sure whether these people were becoming rich because of the money that was supposed to come to the organisation or not. This is why when we felt a need to have full control of such an activity."
The deployment of Maseko inside the country to coordinate repossession activities did not bring to an end activities of the individuals concerned to stop feathering their nests. When Fihla was asked if he knew Moti and whether he supported his application he said he could not say whether or not he supported it. He said the Applicants' legal representative who called him to testify had only told him about Maseko and not Moti. He had therefore not had time to apply his mind to the matter. He had never seen Moti before and only saw him for the first time at the hearing. He went on to say that in or about 1988 or 1989 the leadership of APLA, with himself and Junior included, took a decision that all operations by APLA cadres would have to be acknowledged to avoid a situation whereby other liberation movements took undue credit for the work of their cadres. At first acknowledgement was to be done by the head of Repossession Units, but later, when he was pressed on the point he said it was safer if cadres on the ground used their discretion and did the acknowledgement themselves at a convenient time. He had no knowledge of the criminal trial in which Moti and Themba Radebe were charged and both convicted of crimes relating to the Fidelity Guards Depot. He said he did not know the name of Themba as one of the APLA cadres, this being in spite of the fact that he was the man in charge of military intelligence of APLA at the time, admittedly a very high rank in the organisation. Further questioning of Fihla on the important matter of Moti's alleged association with APLA progressively proved a futile exercise. It was clear that Fihla was not in a position to comment on the authenticity of the alleged political affiliation of Moti and referred the Committee to a list of names of APLA cadres which was compiled in 1994 after the original records of the organisation were confiscated by the police. (We shall refer to the list which was handed up to the Committee as Exhibit "A"). After carefully analysing the evidence of Fihla pertaining to the list we do not think it is worth while to traverse the matter any further as it is clear that the list cannot be accepted as an authentic record of genuine cadres of APLA during the time in question. In any event, as we shall see below, the evidence of Moti alone cannot stand to satisfy the Committee that he was a bona fide cadre of APLA and that he acted on its behalf, let alone the question of whether or not the proceeds of his robberies and other criminal activities found their way to APLA authorities.
Moti commenced his testimony by seeking leave to amend paragraph 6 of his affidavit where he said in 1991 he was sent to Transkei for infantry training under his co-Applicant Thapelo Maseko. (He said it was Tafara Tafara). He withdrew his application for amnesty in respect of one of the incidents of robbery. He states that he was falsely implicated in that case and, as a result, wrongly convicted and sentenced for a crime he never committed. He states that he never took part in either the planning or execution of the said robbery and had nothing to do with the proceeds of the crime. He further testified that he and his companions, who carried out all the robberies for which he is now seeking amnesty, never questioned Peter Mokoena, their commander, as to whom he was sending the money to and believed that he was sending all the proceeds to the PAC in exile. He states that at the time they believed what he told them and as foot-soldiers had no reason to doubt his sincerity. (Needless to say there are very serious difficulties with this claim). Not only did they rob money but a number of vehicles were stolen and hijacked. These included a 5 Series BMW, a 7 Series BMW, a white panel van and an Opel Rekord vehicle.
Captain Johan Diedericks testified that during the relevant time he was a member of the Brixton Murder and Robbery Unit in Gauteng; that he had known Moti since 1988; that he arrested him for robberies; that he was the investigating officer in respect of all the matters for which he is now seeking amnesty and, most importantly, Moti was not known to him and his colleagues as a political activist. He states that had this been the case he would have referred the cases to the Security Branch of the then South African Police Force. According to Diedericks at the time, Moti and his companions were a well-known gang in Soweto who committed many robberies on banks and heists. The police were looking for them all over and there was no indication at all that the gang were doing these actions for an on behalf of a political organisation. He goes on to say that he knew Theki Tshabalala as a drug lord. He was based in Cape Town but originally came from Gauteng and worked closely with Moti and his gang. After Moti was arrested those of his companions who were still alive continued till about a year ago viz 1999 when some were killed and others arrested by the police. Throughout his rendition of the events, Diedericks was a very calm and impressive witness who remained unshaken by cross-examination. He answered all questions without hesitation. We accept his evidence as truthful.
After carefully considering and assessing all the evidence in this matter we have come to the conclusion that Thapelo Patrick Maseko should be GRANTED amnesty for his participation in the armed robbery and theft of money at the Fidelity Guards Depot in or about 1990. He has complied with the formal requirements of the Act and appears to have given a full disclosure of all the relevant facts. The offences committed by him are "acts associated with a political objective" as required by the Act. We accept that at the relevant time he was a bona fide member of a libration movement viz APLA. We also accept that he acted on behalf of APLA. He is accordingly GRANTED amnesty for the attempted armed robbery and for any offences or delict flowing from the incident.
In the case of Moti w are not satisfied that the offences committed are "acts associated with a political objective" as required by the Act. There is no credible evidence that when he carried out the robberies and other crimes pertaining to the theft and hijacking of vehicles he acted on behalf of a known liberation movement as required by the Act. Even if the Committee could exercise a measure of generosity and accept that at the relevant time he was a member or supporter of the PAC and APLA, as he wishes us to believe, it would still be foolhardy to accept that he acted on behalf of the said organisations to advance their struggle against apartheid. Indeed, it is tautologous to make a finding on the credibility or otherwise of Diedericks. Even without Diedericks' evidence, Moti's application would still be wanting in material respects. The testimony of Moti very loudly speaks for itself. Moti was a very poor and a remarkably creative witness who avoided clear and simple questions. He consistently tried to mislead the Committee. Just by way of example, it is improbable that he and his companions would not have asked their so-called commander, Peter Mokoena, who he was giving the proceeds of the robberies to. In all the robberies, large sums of money were robbed and it is improbable that Maseko and Fihla would never have known of the existence of Moti's so-called Unit which was very effective if they were working for APLA. It has been suggested by counsel for Moti that the Applicant should not be refused amnesty and be caused to suffer for the wrongs of Peter Mokoena. Taking a global view of the matter, we are unable to agree with the submission. It would be an affront to common sense to accept such a simplistic view of the matter.
In the result, amnesty is REFUSED to Vontjie Mzimkulu Moti for all the robberies and for any offence or delict flowing from the incidents.
DATED AT CAPE TOWN THIS DAY OF 2001.
JUDGE DENZIL POTGIETER
JUDGE JOHN MOTATA
ADV N SANDI
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