MZWAKHE CLEOPHAS SHANDU

The Applicant makes application in terms of Section 18 of Act 34 of 1995 a amended ("the Act") in respect of a robbery committed at Avoca Wholesalers, Empangeni, during February 1992.

The 1st Applicant, Mpanza, was a trained member of the Military Wing ("MK") of the African National Congress (ANC). He was trained in various countries. He was deployed in KwaMashu in 1991 as the MK commander in the area.

It is common cause that there was political conflict between the ANC and the Inkatha Freedom Party (IFP). This conflict escalated with time. In December 1991 the 1st Applicant was approached by one Lindani Mthiyane, the chairperson of the Umgababa Youth League. He was also a trained combatant. He sought advice in dealing with the violent conflict raging in the Umgababa area seeing that the ANC did not have sufficient funds to provide weapons for defence purposes.

Mthiyane suggested that perhaps ways and means should be investigated to obtain the arms or money because arms could be bought in the Umgababa area.

He stated further that during the same period, Thulani Shabalala, an Empangeni activist, (alias Mayibuye) told him that a policeman known to him as Steyn, was becoming a danger to the ANC. The two of them agreed that Steyn should be assassinated. He sought permission to enlist the assistance of Sifiso Malevu the 2nd Applicant. This was approved.

In 1992, February, the two of them proceeded to Empangeni to familiarise themselves with the area as they had intended to rob the Avoca Wholesalers branch there. This store had been suggested by 2nd Applicant. In addition, as part of the plan, the location of Avoca Wholesalers was such that the robbery was likely to lure Steyn to the scene of the crime and thereby facilitate his assassination. This was apparently part of the plan as suggested by the 2nd Applicant who was able to identify Steyn.

The 1st Applicant testified that he asked the 2nd Applicant to enlist the assistance of others so that the operation could be put into effect. This was done and Mzwakhe Shandu, the 3rd Applicant, Nyamezela Mkhung (deceased) and Thokozani Ngema were introduced to the Applicant. The plan was discussed and the arrangements were made.

They all drove to Empangeni no the day before the incident. It was decided to rob Avoca Wholesalers between 8 a.m. and 9 a.m. Ngema remained in the motor vehicle ready to drive away. The robbery was successfully committed but they were trapped on the premises. They escaped to KwaMashu where they were arrested soon thereafter.

The 1st Applicant was an unimpressive witness. His evidence is furthermore perforated with improbabilities. The overall alleged political reason for the actual robbery seems to have been the prospect of luring Steyn to his assassination. This is highly improbable. The actual assassination was never cleared with the Applicant's superiors and there was no guarantee or likelihood that Steyn, a detective, would appear at the scene of the robbery. If it was politically motivated then the command structure required for such a decision would have been consulted and indeed respected. The Applicant's deference to the president of a youth league branch is highly unlikely. In any event it seems that the Applicant would have been entitled to make that decision himself rather than follow the command of a lower ranked person who was not part of the command structure under which the 1st Applicant fell. This is especially so as the ANC had suspended the armed struggle at that time. It was also not customary for the structures of MK to get strangers involved in such operations, as occurred in this robbery. Again this explanation is improbable. This is even more so in the case of an intended killing of a person. Furthermore, none of these robbers reported to anyone in whose interest they allege to have acted prior to their arrest.

The 1st Applicant tended to compose a version to fit his basic explanation of what occurred. Specifically, when he was confronted with the practice within the ANC and MK at the time, that because settlement negotiations were in progress, authority to attack apartheid institutions was needed. He then suddenly said that he did get approval from his commander. Earlier, he had denied that the needed this approval and indeed he denied that he had obtained any approval for either the robbery and/or the proposed assassination. He also contradicted himself a to who gave him the approval or whether he received approval for the intended actions, where the proceeds of the robbery would be taken and for which reasons.

The Committee were not in possession of any formal applications from either 2nd or 3rd Applicants. They applied for the condonation of late submission of their applications. It seemed that there was a possible reason justifying the hearing of their applications but that required them to testify in that regard. It is on that basis that the Committee heard their applications on the merits with the proviso that if their applications were successful condonation would be granted.

Both 2nd and 3rd Applicants associated themselves with the testimony of the 1st Applicant.

2nd Applicant was an unimpressive witness. He was unable to explain discrepancies in his own evidence and between his evidence and the evidence of 1st Applicant when he should and could have. In particular ,his evidence as to when and if he made a separate application was problematic. That he tended to blame the recorder of his statement for the fatal conflicts between what is stated in the statement and what he testified in regard thereto is unsatisfactory. It is clear his allegation that he made a separate application contradicts his statement in which he stated that he made a globular application with the 1st and 3rd Applicants.

Mr Cele who recorded his statement testified and confirmed that he recorded what 2nd Applicant had told him. This was not challenged in any significant way. "Applicants" Malevu and Shandu associate themselves with the evidence of Mpanza. They therefore succeed or fail in their applications (albeit of a different nature but still on the same facts) in the same way Mpanza would.

In examining the relevant evidence, it is clear that what they did in respect of the robbery and that which went therewith cannot be reconciled with the alleged order in terms of which they acted.

The Committee is not satisfied that Applicant Mpanza has complied with the requirements of the Act. It follows therefore that, in considering the merits of the applications of Malevu and Shandu, the same conclusion must be arrived at. In addition, we wish to mention also that neither of the latter two made a good impression on the Committee and we had difficulty in accepting their evidence.

In the result all the applications are DISMISSED.

SIGNED AT CAPE TOWN THIS DAY OF 2000

R PILLAY, J

D POTGIETER AJ

MR I LAX