LINDILE JONI STEMELA APPLICANT

The two applicants, Thamsanga Oliver Mali (hereinafter referred to as "the applicant") and Lindile Joni Stemela (hereinafter referred to as " the second applicant") apply for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, 18 of 1997 in respect of the killing of Mr André de Villiers who was shot and killed outside his farmhouse in Addo, Port Elizabeth, on 17th August 1992; the attempted murders of two family members and attempted robbery. The application is opposed by the surviving victims and relatives of the deceased on whose behalf the brother of the deceased, Mr F. De Villiers, testified at the hearing. They opposed the application on the basis that they not politically motivated but was purely an act of criminality. It is common cause that the deceased, Mr de Villiers, at the time of his death, was a sympathiser of the ANC and had in fact given information involved in the killing of the Eastern Cape Activist Matthew Goniwe. This gave rise to suspicion that the killing was possibly at the instigation of the security forces.

Both applicants who committed the acts together with two others of whom the one died in prison and another escaped from prison, were convicted of murder, two attempted murders and attempted robbery, and are serving sentences of 25 years imprisonment. Both gave oral evidence at the hearing. From the evidence presented at the hearing the following factual background can be constructed and this has been accepted by the Committee as being common cause.

One Xolani Ncinane, who has since died in prison, and the first applicant were former MK members. They were in need of weapons and raised this issue in a meeting with the late Chris Hani some time before the incident. Hani gave them a mandate to look for firearms from the farmers. The said Ncinane, who was the head of the operation, obtained information from the second applicant that the deceased had arms. This information inter alia the first applicant, in turn, obtained from one Sammy a former employee of the deceased.

Ncinane, the first and second applicant and one Kenneth Gabayi after extensive reconnaissance of the farm planned the operation and carried out the attack during which Mr de Villiers was killed. The deceased was shot by Xolani Ncinane whilst Kenneth Gabayi shot in the direction of the house at the family members who were however, not hurt. Thereafter they ran away, fearing that an alarm had been raised by the family members. They were arrested a few days later.

The evidence of the two applicants differed substantially in regard to certain material matters such as the structure of their alleged SDU and events prior to attack, which discrepancies, in our opinion, impact on the question of whether the attack was planned and carried out with a political objective or not. In considering these differences it became clear to the Committee that whereas the first applicant, with the exception of the actual day of the meeting, was held where Hani was present and some minor and non-material respects were consistent in the presentation of his evidence and his replies in cross-examination. There were discrepancies in the first applicant's evidence. We do not, however, consider such discrepancies material to the requirement of full disclosure. The same cannot be said in respect of the second applicant. The latter contradicted himself and his co-applicant in some important respects, to such an extent that their legal representative and the second applicant were at one stage visibly shaken by the evidence. He was a bad witness and extremely evasive. He was also rather vague about his training, the structure of the unit and in the opinion of the Committee, he did not disclose to the Committee the full knowledge he had obtained from his cousin, Sammy, about Mr de Villiers.

The Committee finds it highly improbable that he was not furnished with any other information than merely that the farmer had firearms as stated in paragraph 3 of his affidavit.

The Committee is further of the opinion that the second applicant had a hidden agenda, namely an interest to rob money in going to Mr de Villier's farm and that, despite any political objective he may have shared with his comrades, he had gone there in an attempt to obtain more than just arms and that his primary aim was to enrich himself.

Insofar as the first applicant is concerned, the Committee is satisfied that the only knowledge he had, related to the firearms. The information about Mr de Villiers was conveyed to the late Xolani who was the head of the operation and the second applicant participated in the operation in the bona fide belief that the intention was to obtain arms.

It may be argued that the fact that the formal structures of the ANC did not confirm the meeting held with the late Chris Hani should be regarded as a negative factor weighing against the first applicant. The letter does not categorically state that no meeting was held with Hani. The Committee is satisfied that the evidential value of the letter is simply proof of the existence of the letter and not truth of the contents, since no evidence was tendered to prove the letter's veracity. This Committee is, however, aware of similar evidence in regard to the late Hani in other matters. We accept and take cognisance of the establishment of the SDUs and the general instructions to obtain arms inter alia from the farmers did indeed emanate from him.

Accordingly the first applicant, Thamsanqa Oliver Mali is GRANTED amnesty for the following offences:-

1. The murder of Mr . André de Villiers;

2. The attempted murder of Elizabeth Brenda de Villiers and Louis André Villiers ; and

3. The attempted robbery of Mr André de Villiers committed at or near Addo, Port Elizabeth on 17 August 1992.

The evidence before us does not show that the second applicant in killing the deceased was only to obtain arms to achieve a political objective but merely for pecuniary interest.

We are, therefore, satisfied that the second applicant has not met the requirements set out in Section 20(2) and (3) respectively and his application for amnesty is REFUSED.

The committee is of the opinion that the relatives of the deceased Mr . André de Villiers are victims as defined in the act and recommended that they be referred to the Committee on Reparation and Rehabilitation for consideration in terms thereof.

Signed on the ...................... day of .................................. 1999

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JUDGE S. KHAMPEPE

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ADV. FJ. BOSMAN

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ADV. NJ. MOTATA