Amnesty Hearings — Durban — 1998-10-22

CHAIRPERSON: The applicant in this matter was a member of the ANC at all relevant times and was appointed as a bodyguard to the Cosatu Northern Natal Chairperson, Mr Vincent Shandu in 1991.  The incident in respect of which he claims amnesty took place on the 2nd of September 1992.
	He gave evidence that Mr Shandu's brother had been killed two years earlier and that threats had been made against Mr Shandu, and it was for this reason that the ANC had appointed a bodyguard to reside in his house and had armed him with a machine pistol.
	On the night in question there was a raid on Mr Shandu's house by members of the South African Police Force.  It was put to the applicant that Mr Shandu had a close relationship with members of the Security Police, that he saw them frequently to discuss matters like holding marches and matters of the nature but it is quite clear that he was given no notice of this raid.  The raid was as a result of an informer having said that there were firearms in Mr Shandu's house and the police obtained very properly, a search warrant from the relevant Magistrate and came to the house looking for these firearms.
	Although it is not of any direct relevance to the application, it is quite clear that no firearms were found in the house and that the information given by the informer had been incorrect. 
	The applicant in his application avers that he was woken up by the sound of shots being fired and that he fired shots through he window in his capacity as a bodyguard, in an endeavour to drive the attackers away.
	The evidence led at the trial and contained in the affidavits which have been filed was to the effect that the police when they arrived at the house, surrounded the house and then knocked on the door loudly stating in English that they were the police and that they should open up.
	There appears to be a dispute between the two versions but it may well be more a mistake than a dispute.  It appears to us that it is improbable that the police would have gone to the house legitimately to search it and just open fire for no reason whatsoever.
	It appears equally improbable that the applicant had he known that it was the police who were knocking on the door of the house, would have opened fire on them.  He was after all the bodyguard of a responsible person who was well-known in the vicinity and who, as far as we know, had committed no wrongdoing.  There were no guns there to hide.  The only gun in the place was the gun he had been issued with to safeguard the life of Mr Shandu.
	Having regard to the evidence as set out in the affidavits and with reference to the Judgment given, it appears to us extremely probable that the applicant was woken by noise and that when he awoke he was told or gained the impression that there were people outside, which was quite correct, that there were people who were trying to get into the house, which was quite correct, and he leapt to the assumption that these were attackers who had come to attack Mr Shandu.  This of course was incorrect but in the light of that he opened fire and fired two shots through the window, one of which very unluckily struck one of the policemen who was standing outside the house.
	It wasn't suggested that he had aimed deliberately at him, and in view of the fact that it was 4 o'clock in the morning and that the only light that may have been there was from street lamps some distance away, it seems improbable that he could have seen a target.  The most he may have seen was shadows on the curtains.
	Be that as it may, it appears to us that when he acted as he did he was not intending to attack the police force, he was acting in the defence of Mr Shandu and that this amounted to an act with a political objective in terms the Amnesty Act.
	It is not necessary to refer to all the documentation that was put up before us.  It appears that the matter was fully investigated and it is quite clear from the evidence led at the previous hearing, that there were numerous shots fired at the house, but it seems to us probable that these shots were fired after the Sergeant had been injured and were in retaliation for what was seen as an unprovoked attack on the Sergeant.   As I've said earlier there appears to have been misunderstandings and mistakes on both sides.  	However we are satisfied that the applicant has made out a case for amnesty in respect of the attempted murder of the police who were outside the house.  He has applied for amnesty in respect of two counts of attempted murder.  It would appear that they were in respect of the two policemen, one of which is standing on each side of the door and these are charges which are presently pending against him.  He has also claimed amnesty in respect of the illegal possession of a firearm and of ammunition.  As I understand it, and Mr Wills can correct this if I am wrong, the firearm is the Stechkin machine pistol and the ammunition was the ammunition found for this pistol, 19 rounds.
	Accordingly the applicant is GRANTED AMNESTY IN RESPECT OF THE ATTEMPTED MURDER OF TWO POLICEMEN OUTSIDE HOUSE NUMBER 1658, SANDUMBILE ON THE 2ND OF SEPTEMBER 1991

AND FOR THE ILLEGAL POSSESSION OF A STECHKIN: S-T-E-C-H-K-I-N MACHINE PISTOL AND 19 ROUNDS OF AMMUNITION FOR THAT PISTOL IN CONTRAVENTION OF THE PROVISIONS OF THE ARMS AND AMMUNITION ACT.
	The Committee is also of the opinion that INSPECTOR W J VAN SCHALKWYK IS A VICTIM IN RESPECT OF THE SHOOTING ON THAT OCCASION, and he is referred to the Committee on Reparation and Rehabilitation for its consideration in terms of Section 26 of the Act.

MR WILLS: As the Court pleases.

CHAIRPERSON: ...[inaudible] Inspector Botes.

MR NEL: Mr Chairperson, that must be a mistake, he was not injured in the incident.

CHAIRPERSON: ...[inaudible]

MR NEL: No.

MR WILLS: Sorry, Mr Chairperson, nobody else was injured.  The charges were in respect of two persons, a Andre Potgieter and Willem van Schalkwyk but only the one was injured and that was van Schalkwyk.

CHAIRPERSON: ...[inaudible] insert into the order that I have just made, the names INSPECTOR VAN SCHALKWYK AND INSPECTOR ANDRE POTGIETER.