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Ac/2000/001 Truth and Reconciliation Commission

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Ac/2000/001 Truth and Reconciliation Commission AC/2000/001 TRUTH AND RECONCILIATION COMMISSION AMNESTY COMMITTEE APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, NO.34 OF 1995 ______________________________________________________ TSEDISO EPHRAIM MOALOSI (AM00292/96) ______________________________________________________ DECISION ______________________________________________________ The applicant applies for amnesty for two incidents. We deal with them in the chronology of their apparent occurrence. 1. The applicant lodged an application for amnesty on the 14th January 1997 with the TRC, in which he applies for amnesty for "attempted murder" on an undisclosed date in the township of Mmamahabane, Ventersburg. The nature and particulars of the act/s are stated as follows: "As I was a member of the SAPS at that point in time at Ventersburg, one of my colleagues' house was attacked by a mob of angry residents of Mmamahabane, Ventersburg. I reported the matter to my station commander telephonically and he instructed me to attend to the matter by all means and he ordered me to make use of my pistol to save Constable Mokau's life and his entire family. I went there and one youth was shot by me". (quoted verbatim) He gives the name of the victim as "alias" Motsheare of address unknown. As political objective he states:- "Through an order from my senior I had to comply. The rules of the former government was to comply and complain later." Justification for the act as associated with a political objective is given as: "The offence was directed at the ANC and its supporters of Mmamahabane, Ventersburg. I was a member of the SAPS and I had to comply with orders. The objective was to overpower the ANC and to make their aims fruitless." The applicant was never charged. The application with others that we will alter come to, was set down for a hearing on the 22 December 1999 but after perusal of the documents removed from the roll. Notice of such removal did, however, not reach either the applicant, who had not yet arrived at the originally scheduled time, or his legal representative Ms Cambanis. Ms Cambanis, however, arrived on due time and was asked to meet with the Committee to explain that the reasons for removal from the roll were: In relation to his application for amnesty for the attempted murder of "Alias Matsheare, on the face of the application, the act seems not to be one which entails an offence, but that it appears to have been the mere execution of his civil duties as a policeman. Ms Cambanis was however invited to consult with her client and serve us with a supplementary affidavit and/or argument on this point. In relation to the second application dated 7 October 1996 it was pointed out that the application was for attempted robbery, therefore not a human rights violation as defined in the Act and capable of being dispensed with, without a hearing. On the 24th November, the Committee was furnished with a "supplementary affidavit" signed by the applicant, by Ms Cambanis, in which the applicant made the following submissions: 1. That he was in the employment of the State (Police Services). 2. That the victim was part of the African National Congress protesters who were attacking the home of a fellow policeman. 3. That the order was given by his superior, Ben van Wyk. 4. That he has been advised that his actions fall under Section 20(2)(b) of the Promotion of National Unity and Reconciliation Act. This clearly takes the matter no further than the original application for amnesty. In the above, no act or omission is disclosed which would constitute and offence. There is no disclosure of any information which points to any objective (let alone any political objective) to commit such an offence, there is no indication that the alleged order of Van Wyk was in the slightest related to the commission of an offence. What speaks from the information put before the Committee is that the applicant was indeed ordered to comply with his duties as a policeman to protect life and property and that he had the intention of doing exactly that. The fact that those who were attacking his colleague were supporters of the ANC is neither here no there. The applicant, on the facts, had no intention to commit any unlawful act and there is no indication whatsoever that Van Wyk had unlawfulness in mind when he gave the alleged order. In the affidavit furnished to the Committee by Ms Cambanis, signed by the applicant, other information is however tendered. We quote:- "I was not prosecuted for the said incident because: one of my supervisors who came to the scene, Mr Engelbrecht gave me an equivalent of the bullets that I have fired from my firearm to cover up the shooting. No statements were made about the incident to the police" Insofar as this information may (and probably does) disclose some offence, again there is no information which links this with an act associated with a political objective, but merely as one to obviate an investigation. The application for amnesty for the attempted murder of "Alias Motsheare is therefore REFUSED. 2. The second application for consideration by the Committee is dated the 7th October 1996 and concerns an attempted robbery on 26 August 1993 at the Ventersburg Municipal Police Station. The applicant states the following: "As a chosen leader of the community of Mmamahabane Township, Ventersburg, I went to the municipal police offices to take the keys of the Administrator's office from the municipal police and hand it to the people to prohibit the racist Administrator to govern the people of the township. I planned to take the keys by force if necessary. The police officers on duty, however, opened fire on us and we had to flee from the offices. We were unarmed during this attempt and allegations that we were armed and went to rob the police offices from firearms are not true." Now, it needs immediately be said that the applicant was charged for attempted robbery, convicted and sentenced to 9 years imprisonment on the 3 November 1994. On a charge of attempted murder for the same incident, the applicant was acquitted. In the same case the applicant was also charged for an attempted murder, malicious damage to property and attempted robbery of a firearm, convicted on all three charges and sentenced to imprisonment on these charges for 6 years, 8 months and two years respectively. Applicant does however not apply for amnesty for these offences. As far as the trial is concerned, the applicant's plea was one of not guilty and a total denial of all the charges against him. This includes the charge of attempted robbery, the subject matter of this application. The state lead extensive evidence commencing with a call received, at the charge office at 23h15 and another call at 00h15 the caller enquiring about the strength and names of those on duty at the charge office. Later that morning three persons entered the charge office, their faces covered with cloth and one had a balaclava and the cloth that covered his face. They were armed. They ordered those present to stand still. One of the policemen started shooting in the direction of the attackers whereupon two of them fled from the scene. Applicant remained, jumped over the counter and approached the safe. Further shots were fired by the applicant and one of the policemen. In the commotion that ensued the white cloth came off the face of the applicant and he was recognised by those present, him having had been a colleague of theirs earlier. The applicant managed to escape through a window in an adjacent storeroom. The policemen were of the opinion that the applicant was looking for firearms on the basis of his approaching the safe, where he, as an ex-policeman, knew weapons were kept. The State also lead forensic evidence related to hair monsters found at the charge office, on the balaclava and two of the cloths left at the scene. It matched that of applicant. Finger and palm prints found on the safe matched with those of applicant. The repeat button of applicant's telephone, when activated shortly after the incident, caused the call to reach the charge office. Applicant could not give an explanation. The applicant testified at the trial that at no stage on the day in question, 26 August 1993, was he in or at the Municipal Police office. He was at his parents at 21h00 and then went to sleep. That night he was awakened by the police knocking at his door. The applicant also furnished the Committee with an affidavit, dated the 9th April 1999, deposed to at Henneman. In this statement he alleges that on the 26th April he and others, eight of them in all, walked to the Transitional Council offices. None was armed. He lead with another three following directly behind him. He demanded from Constable Shuping keys to the Municipal offices. He moved around the counter to take possession of the keys. Constable Shuping started shooting above his (applicant's) head and emptied his gun. He then asked for another gun whereupon applicant left the offices. None of them was armed and they had no intention to rob the Police Station. One would have expected the applicant, if it was true, to have advanced at the trial this sequence of events. It was not illegal, honourable and clear cut. He did not. On an assessment of all the information, the finding of the Committee is that the applicant has not made a full and truthful disclosure to the Committee.
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