Boy Diale and Christopher Makgale were charged and convicted of the crime of the murder of Glad Mokgatle. The offence was committed on the 29th of December 1990 between Luka and Rooikraalspruit in the district of Bafokeng. They had both pleaded guilty to the charge. The trial court found that there were extenuating circumstances and on the 8th of October 1991, they were sentenced to imprisonment of 12 years and 15 years respectively. They are at present serving their sentences at the Odi District Prison.

The applicants were among a group of ten people who went by kombi to a house in Tshaneng to get the keys of the Bafokeng Civic Centre from Glad Mokgatle, who will hereinafter be referred as the deceased. This was done in pursuance of a decision taken at a meeting of the Action Committee earlier that day. The original intention of the group was to take the keys of the Civic Centre from the deceased, kidnap him and hold him hostage for reasons which I shall mention later.

When the group arrived at the house in which the deceased was, they surrounded it. Some went into the house whilst others stayed outside. When they eventually encountered the deceased, he came out of the house armed with a panga and appeared to be aggressive. The group overpowered him put him in the Kombi and drove off. He was questioned about the keys to the Civic entre, but proved to be uncooperative. Some members of the group assaulted the deceased and at a spot along the road the Kombi stopped, the deceased was pulled out and beaten up. The two applicants joined in the assault on the deceased and although initially they did not intend to kill him, emotions ran high and they wee caught up in a frenzy of violence and although some members of the group did not want to kill the deceased, the majority view was that he should be killed. When asked what the reason was for the decision to kill the deceased, Diale said "the main reason, we did not want him to identify us."

The assault on the deceased caused his death. When questioned about his precise participation in the assault on the deceased, Diale said:

"If it is a request from the Committee I will have to state it clearly. I kicked him, I hit him with my fists and I strangled his neck."

According to the evidence of the second applicant, the deceased was being attacked after he was pulled out of the Kombi and lying on the ground. His evidence was:

"I had a look at Mr Mokgatle and I could see that he was still alive. I took the sabre from him and I chopped him. I chopped him personally. I chopped him because I realise that we were heading for the prison. I wanted to sweep away the evidence."

The applicants were members of the Action Committee of the Bafokeng Tribe. There was overwhelming evidence that the killing of the deceased was due to the fact that he was Chairman of the Tribal Council in the Bafokeng district. He had been appointed to that position by Mr Lucas Mangope, President of Bophuthatswana. The people of Phokeng looked upon the deceased as a person who was put into position to administer the affairs of the Tribe on behalf of the regime which the Bafokeng people did not recognise and had over a long period of time, strenuously resisted. The Civic Centre belonged to the Tribe, but control thereof had been taken over by the Mangope regime. The social, political and cultural activities of the Tribe could not take place in the Civic Centre unless it was assented to be the deceased in his capacity as Chairman of the Tribal Council. The Civic Centre represented the symbol of the people's aspirations and they believed that in order to regain control of it, they had to get hold of the keys from whoever was in charge.

There was overwhelming evidence of the rejection by the Bafokeng Tribe of the Mangope regime as the Tribe did not want to be incorporated into the homeland of Bophuthatswana. The rightful Chief of the Bafokeng people, namely Chief Molotlegi had been driven into exile in March 1988 and he was replaced by an appointee of Lucas Mangope. The Tribe's desire to get their Chief back to his rightful place as Chief of the Bafokeng, was the earnest wish of both the applicants.

The background and context within which the crime was committed as set out in their application for amnesty and a portion of it reads as follows:

"The applicant is a member of the Bafokeng Tribe. The Bafokeng own most of the platinum reserves in South Africa. Approximately 300 000 member strong it receives R75 000 000-00 per annum in royalties from Impala Platinum. Prior to the independence of Bophuthatswana, the royalties were kept in trust by the SA government, Department of Foreign Affairs on behalf of the Bafokeng. After independence, Mangope assumed trusteeship and the royalties were paid directly into the account of the Bophuthatswana Department of Finance. The contribution of the tribe to the economy of this "state" was enormous and in these circumstances, the Bafokeng expected that the Bophuthatswana government would give them due recognition. Such recognition was not forthcoming and a steady deterioration of the relationship between Mangope and the Bafokeng started in 1977."

In 1983 the tribe attempted to secede and as a result, Mangope visited Phokeng on May 14 and told them:

"I have come to tell you to go, you must trek - I say vacate ... I am going to conduct a Commission of Enquiry here. I want you to know that as from now we are going to declare a state of emergency in Phokeng."

After the attempted coup in 1988, Chief Lebone Molotlegi of the Bafokeng, his wife and numerous members of the tribe were detained without trial; and without any charges being brought against them. When Chief Lebone was released, he left Bophuthatswana and went into exile in Gaberone. Before leaving, he appointed his Rangwane Mr Cecil Tumagole as leader of the tribe to act on his behalf in his absence.

During 1988, all meetings of the Bafokeng Tribal Authority, Tribal Council and the Bafokeng Women's Club were banned. Under these circumstances, it became impossible for the tribe to administer its affairs - eg major construction contracts relating to ongoing work could not be complied with and new contracts could not be considered and/or approved. Furthermore, Mangope intervened in the tribe's affairs and general administration and literally forced the tribe to business with Impala Platinum. Impala Platinum refused to make available to the tribe certain information regarding their mining operations as allegedly they had been assured by Mangope that they would not have to disclose the information.

Mangope, mindful of the tribe's opposition to him, devised a strategy whereby persons sympathetic to him were appointed to positions of authority within the tribe.

As a result, George Molotlegi was appointed as Acting Chief and Glad Mokgatle as Chairman of the Tribal Council. Others sympathetic to his government were also appointed and those who opposed the Acting Chief were dismissed. In this way a completely changed leadership was created.

On 4 April 1990, members of the tribe wrote a letter to Mangope requesting an appointment to discuss the leadership of the Bafokeng. All the signatories were picked up at their homes and taken to Mmabatho as a form of intimidation. Letters were also written to the former State President F.W. de Klerk and the Minister of Foreign Affairs Pik Botha, but to no avail. Mangope refused to meet with members of the tribe unless the meeting was arranged by the Acting Chief. In spite of the fact that the Acting Chief was part of the problem, the members were so desperate at this stage that in June 1990, 25 of them wrote to him requesting a meeting. All twenty five (25) of the signatories (including the secretary who had typed the letter, who at the time was five months pregnant), were detained.

Although it might appear from the evidence that the applicants, more especially the second applicant, made sure that the deceased died of his injuries, because they feared that had he live, he would most certainly have implicated them in the assault on him, the evidence as a whole leaves no doubt that the attack on the deceased was associated with a political objective, that is regaining control of the Tribe. In this regard it should be noted that in sentencing the two applicants the Judge accepted the fact that their offence was politically motivated.

The applicants and their companions believed that they were acting on behalf of the Bafokeng people in furtherance of their political struggle against an oppressive regime.

The sons of the deceased were present and two of them gave evidence. They concede that the applicants had acted on behalf of the Bafokeng Tribe and expressed the wish that amnesty be granted to the applicant. They expressed the belief that reconciliation within the Tribe would be achieved if the applicants were released from prison and granted amnesty.

We have come to the conclusion that their conduct meets the requirements of the criteria set out in Section 20(3) of the Act. They are hereby GRANTED AMNESTY in respect of the murder of Mr Glad Mokgatle on the 29th of December 1990 in the district of Bafokeng.

(Signed)

MR JUSTICE H. MALL

MR JUSTICE A.B.M. WILSON

MR JUSTICE B. NGOEPE

ADV C. DE JAGER

MRS S. KHAMPEPE

Cape Town, 22 August 1996

DATE OF HEARING: 20 MAY 1996

PLACE OF HEARING: RUSTENBURG

ATTORNEY FOR APPLICANT: BELL, DEWAR & HALL

P.O. BOX 4284

JOHANNESBURG

2000

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