AC/2000/002

APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, NO.34 OF 1995 ______________________________________________________

The applicant makes application in terms of Act 34 of 1995 as amended in respect of:-

The applicant was convicted for the above offences in the High Court Transkei division under case number 60/96 and sentenced to an effective 25 years imprisonment. In the same case he was convicted for attempted robbery such arising from the same incident. For this count he was sentenced to eight years imprisonment. The applicant stated that he maintained his innocence in regard to the attempted robbery charge and does not apply for amnesty therefor.

The applicant testified that he is a trained uMkhonto weSizwe cadre having been trained in Cuba, Angola and Tanzania. His home is in KwaZulu Natal. He returned to South Africa in 1992. As at 3 November 1993, the date of the incident, he had been in South Africa for quite some time. he left his home in KwaZulu Natal and came to Mount Ayliff in the Transkei. On his arrival he reported to the Chairperson of the ANC Youth League, a certain Vido Gwebani. His duties included educating the people at Mount Ayliff on voting. He canvassed votes for the ANC and also assessed the social and political conditions of the area. He discovered that on the political arena the people had problems with the deceased who called them 'kaffirs'. The applicant then established from the Local Executive Committee of the ANC, that the deceased was a card carrying member of the ANC and that he, however, never attended meetings.

When performing this voter education and training, the applicant used to call meetings of all the rural people. When performing this voter education the rural people would tell the applicant that he was wrong in his teaching. The people told him that the deceased had told them to put a cross next to the picture of the person you did not want in other words next to Mr de Klerk.

The applicants testified that his efforts to correct this misinformation were futile i.e. that a person should put a cross next to the picture of the person you wanted. The rural people were convinced that a cross meant wrong.

The applicant testified that the deceased continued with this misinformation for some time. The rural people used to purchase milk from Mr Baxter's truck at the side of the road.

This problem of misinformed people was considered serious by the ANC. It was then discussed at a local interim Committee meeting. The deceased was perceived to be a government agent or spy and as a result the applicant in his capacity an MK operative decided to kill him.

He stated that in November 1993 he went to the place where the deceased was selling milk at the side of the road and shot him five times. He was shot at close range with a 9mm firearm. The applicant testified that he acted alone and had not received an order but had used his discretion as a trained MK operative.

The applicant's application was opposed. However no evidence was led on behalf of the victims. It was put to the applicant that his act was not politically motivated but was purely criminal.

The opposition disputed that:

However, no evidence was led to support the basis of the opposition. As a result the only evidence before this Committee is that of the applicant.

Having considered all the evidence before us the Committee is satisfied that the applicant has satisfied the requirements for amnesty in terms of the Promotion of the National Unity and Reconciliation Act 34 of 1995 in that:-

In regard to the proportionality aspect contained in Section 20(3)(f) that is that the relationship between the act and the political objective pursued and the proportionality of the act to the objective pursued, the Committee accepts that the applicant's act is not disproportionately to the political objective pursued.

The Committee accepts that the objective of the liberation struggle was to bring about a democratic political dispensation. It was argued on behalf of the applicant that people died and others were prepared to die in order to achieve this objective. Applicant, by being a member of MK, was also prepared to die for the objective of bringing about a non-racial democratic order in South Africa. At the material time the achievement of this objective was in sight. It had been agreed that the first non-racial democratic election was to take place.

Applicant acted in order to safeguard rural persons from being denied their right to vote. His act was confined to the killing of the deceased. No innocent bystanders were killed or injured. His act was confined to the elimination of an obstruction in the election process.

Accordingly amnesty is GRANTED to Linda Geoffrey Xaba for the:-

The next of kin of Mr S Baxter are referred to Reparation and Rehabilitation Committee for consideration.

SIGNED AT..................THIS.....DAY OF..........2000

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JUDGE H MALL

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ACTING JUDGE C DE JAGER

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ADVOCATE S SIGODI