Issued by: Truth and Reconciliation Commission
The Amnesty Committee of the Truth and Reconciliation Commission has granted amnesty to four Afrikaner Weerstandsbeweging (AWB) members and the slain Inkatha Freedom Party (IFP) South Coast leader James Zulu for acts relating to an attack on a police station in Flagstaff, former Transkei shortly before the 1994 elections.
Mr Zulu was killed in Port Shepstone earlier this year. The four other applicants who are AWB members are Harry Jardine, Morton Christie, Andrew Howell and Christo Brand.
Their applicants related to an incident which left one policeman, Constable Barnabas Jaggers dead and two others, Constable Edmund Nyangana and Inspector Mzingisi Mkhondweni wounded in ensuing gunfire at Flagstaff Police Station on March 5, 1994. The applicants fled with a number of weapons and rounds of ammunition in a police van which they used as a getaway vehicle.
They were later arrested and convicted of murder, attempted murder and robbery but were not sentenced pending the outcome of their amnesty applications.
During their appearance before the Amnesty Committee the applicants implicated an AWB commander in the Umkomaas area Mr Patrick Pedlar and Mr Robin Shoesmith of the IFP as the ones who ordered them to assist in obtaining weapons which would be used by the IFP's Self Protection Unit.
In its decision, the Amnesty Committee said it was satisfied that the offence for which the men applied for amnesty were acts associated with a political objective committed during the conflict of the past. It also said that it was satisfied that the applicants had made full disclosure.
Relating to Mr Zulu's application, the Committee invoked the provisions of Section 20 (7) (c ) of the law governing the operations of the TRC. In terms of that section, no person, organisation or State can be held responsible for acts or offence committed within the prescribed period by a person who is deceased.
The full text of the judjement follows.
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BEFORE THE AMNESTY COMMITTEE
APPLICATION FOR AMNESTY IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT. NO 34 0F 1995
THE AMNESTY APPLICATIONS OF :
1. JAMES MKHAZWA ZULU 5864/97 2. HARRY SIMON JARDINE 6178/97 3. MORTON JS CHRISTIE 6610/97 4. ANDREW HOWELL 5961/97 5. CHRISTO BRAND 6422/97
DURBAN 29 APRIL 1998
DECISION
The five applicants were convicted in the Transkei Supreme Court of :
1. Murder in contravention of Section 84 of Act 9 of 1983 in that on or about 6 March 1994 at the Flagstaff Police Station they wrongfully and intentionally killed and murdered Barnabas Jaggers, a 33 year old male.
2. Attempted murder in contravention of Section 31, read with Section 84 of the above act in that at the same time and place they wrongfully and intentionally attempted to kill and murder Wele Edmund Nyanguna and Mzingizi Abednego Mkhondweni, both male adults.
3. Robbery in contravention of Section 155 (1) of the said act at the above mentioned place and time, in that they unlawfully and intentionally stole one Nissan LDV and one metal trunk, containing R140,67 cash, keys, two R1 rifles, one R4 rifle and rounds of ammunition and a further 3 R4/R5 rifles, the property of or in the lawful possession of the Transkeian Police by using violence.
The facts leading to the convictions and which formed the basis of the applicants applications for amnesty can be summarised as follows:
Applicants 1 and 3 were members of the Inkhata Freedom Party while applicants 2,3,4 were members of Afrikaner Weerstandbeweging. Applicant 3 had dual membership of both organisations.
The applicants were requested by Patrick Pedlar, who was the commander of the AWB in the area from Umkomaas to the Transkei and Robin Shoesmith, a member of the IFP to assist in the obtaining of firearms to be used by the IFP's self protection units in their political war against the ANC. The Flagstaff police station was considered an easy target for this purpose because according to information obtained there would only be one policeman on duty on a Saturday night and he could easily be overwhelmed.
The operation was planned for the night of 5/6 March 1994 but unbeknown to the applicants the police was tipped-off, alledgedly by Pedlar.
Reinforcements were sent to the police station and what was foreseen as an easy task, became a shoot-out in which Mr Jaggers was killed and Messrs Nyanguna and Mkhondweni wounded before the firearms could be robbed. In the same process a police vehicle was robbed by some of the applicants to get away.
Before the start of the hearing and after the matter had already been set down for hearing the first applicant was killed in a violent altercation. His application could therefore not be proceeded with.
Section 20 (7) (c) of the Promotion of National Unity and Reconciliation Act, No.34 of 1995 may however be relevant in so far as civil claims against his estate may be instituted. There is nothing in the evidence pointing to a different decision in his regard than the conclusion reached in the other applications.
Affidavits by Messrs Mkhondweni, Tshwane and Dlamini were filed in opposition to the applications. It was argued on their behalf and on behalf of the deceased that amnesty should not be granted because the applicants did not disclose who actually killed the deceased and wounded the other victims. In this regard the evidence was:
Brand, the 5th applicant, had no gun at the stage that the shooting took place, Christie had a revolver and he shot and wounded Mr Mkhondweni. Howell, the 4th applicant, testified that he is of opinion that he wounded Mr Nyanguna because he fired in his direction. He also testified that it is not impossible that he might have shot Mr Jaggers but considers it to be improbable because Mr Jagger's body was found in the rear of the bus whilst he was shooting towards the front of the bus. He is of opinion that it is more probable that Mr Jaggers could have been shot by Shoesmith.
All the applicants testified that it was dark and that the others could not observe who shot in which direction. Only the marksmen themselves could testify in which direction they shot. Messrs Shoesmith and Roy Lane who also participated in the attack did not testify. They were state witnesses in the prosecution of the applicants and were indemnified against prosecution at the end of the trail.
In conclusion, the committee after considering the applications, all the affidavits filed and the evidence, is satisfied that:
a) the applications comply with the requirements of Act 34 of 1995;
b) the offences to which the applications relate, are acts associated with a political objective committed in the course of the conflicts of the past
c) that the relevant facts relating to the particular offences have been disclosed, bearing in mind the circumstances prevailing on the scene during that night.
The committee therefore grant amnesty to applicants 2,3,4 and 5 in respect of the offences referred to under paragraphs numbered 1,2, and 3 at the outset.
As far as the deceased applicant, Mr Zulu, is concerned the committee refers to what has been said about the application and the relevance of Section 20 (7) (c) of Act 34 of 1995 herein before.
SIGNED ON THE OF 1998
JUDGE H MALL
ADV. C DE JAGER
DR WM TSOTSI
CDJ/svd
ADDENDUM
COMMITTEE MEMBERS : J, H Mall, Adv C de Jager, DR WM Tsotsi
DATE OF HEARING : 29 April 1998
VENUE : TRC Office Durban
EVIDENCE LEADER : Mr Robin Brink
FOR THE APPLICANTS : Mr L de Klerk No 3,4,5 Nell Coetzee van Dyk P.O. Box 3761 Durban 4000 : 031- 3071974/5 (tel) : 031- 3071974 (fax)
FOR APPLICANT : SD, Slabbert No 2 501a Salmon Grove Chambers 407 Smith Street Durban 4001 : 031 - 3018600 (tel) : 031 - 3068429 (fax)
FOR INTERESTED & : TW Mgidlana VICTIMS Mapoma Mgidlana & Asso. P.O. Box 914 Umtata 5100 : 0471-26357 (tel) : 0471-26357 (fax)
N.O.K. : Mrs N Jaggers
IMPLICATED PARTIES : Ferdi Wentzel, Patrick Pedlar, Robin Shoesmith & Sipho Ngcobo.