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.
In addition, the applicant denies guilt and intention to commit a robbery of any kind. Amnesty is therefore REFUSED.
SIGNED AT...... THIS.....DAY OF...... 2000
______
ACTING JUDGE N J MOTATA
______
ACTING JUDGE C DE JAGER
______
MR W MALAN AC/2000/002
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 ______
LINDA GEOFFREY XABA
(AM3832/96)
______
DECISION
______
The applicant makes application in terms of Act 34 of 1995 as amended in respect of:-
(a) The murder of S Baxter on 3 November 1993.
(b) The unlawful possession of a firearm.
(c) The unlawful possession of ammunition.
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:
(1) applicant was an active ANC member in the area and that he attended ANC meetings.
(2) the deceased misled the voters but more importantly that the complaints about the deceased misleading voters had ever been raised at ANC meeting.
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:-
1. The application complies with the requirements of the Act.
2. The offence is an act associated with a political objective committed in the course of the conflicts of the past.
3. The applicant has made a full disclosure of all the relevant facts.
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:-
1. Murder of S Baxter on 3 November 1993.
2. Unlawful possession of a firearm.
3. The unlawful possession of ammunition.
The next of kin of Mr S Baxter are referred to Reparation and Rehabilitation Committee for consideration.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE H MALL ______
ACTING JUDGE C DE JAGER
______
ADVOCATE S SIGODI AC/2000/003
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 ______
XOLA TEMBINKOSI YEKWANI
(AM7970/97)
______
DECISION
______
This is an application for amnesty in terms of the provisions of Section 19 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The application relates to the death of Mziwonke "Pro" Jack, a high- profiled African National Congress ("ANC") member in the Western Cape who was shot and killed by applicant on the night of 19th June 1991 at or near Lansdowne Road, Nyanga East. The townships of Cape Town was plagued at the time by widespread violence involving conflicts in the taxi industry as well as the general political conflict at the time. Given the high political profile of the deceased, there was a belief held by many people at the time that the deceased was assassinated at the instance of his political opponents. this theme was again touched upon in the course of the amnesty hearing. The application was opposed by the next-of-kin of the deceased and various other interested parties were legally represented at the proceedings. Only the applicant and the sole passenger in the vehicle of the deceased at the time of the incident, testified at the hearing.
Although many issues were canvassed during the course of the hearing, we are of the view that the matter could be decided on a limited issue. We accordingly decline to finally decide any of the other issues that were raised in the hearing and proceed to deal with the issue which is determinant of the application.
One of the requirements of the Act is that the conduct of the applicant should constitute an act associated with a political objective as envisaged in the Act for the application to succeed. We proceed to examine this requirement. On applicant's version, he was an ANC member who had received military training under the auspices of uMkhonto weSizwe ("MK"). He was also a member of the Nyanga East Self-Defence Unit ("SDU") at the time of the incident. He had planned to launch an attack on the police on the night of the incident and had collected a few of his fellow ANC activists to assist him in this process. Applicant was armed with a R4 rifle and some of the other members of his group with various other firearms which formed part of the arsenal of arms used by the SDU. They proceeded to the vicinity of the intersection of Emms Drive and Lansdowne Road in Nyanga East sometime prior to 22h00 to await the arrival of a police van which normally transported the police past the point in question between approximately 22h00 and 22h30 which is about the time of the usual change of shift of the police. Applicant intended to attack the police vehicle when it passes the particular scene. The group took up their positions under a few trees in the vicinity of the intersection. At some point Applicant heard one of the members of his group telling them to watch out. Applicant then became aware of a vehicle that was very close to him and was approaching from behind. Applicant thought that it was the police who had come to arrest or attack them and he immediately fired a number of rounds on automatic fire at the driver of the vehicle. When applicant was satisfied that the occupants of the vehicle must have been killed, he stopped firing and the group fled from the scene. Applicant had no orders to launch the intended attack upon the police and had not raised the matter with any of his superiors prior to the incident. Subsequent to the incident he raised the matter with a Mr Langa, who was his senior and who undertook to raise the matter with the ANC. Mr Langa seemed to have neglected to do so and he is since deceased. At some point applicant was approached by the officials of the ANC who were investigating the killing but applicant denied any knowledge of the incident. he had consulted an attorney on the advice of Mr Langa but had told nobody else about the incident.
Applicant indicated that the attack upon the deceased was a mistake and that if he had known that the deceased was driving the vehicle, he would never have fired at him. Applicant indicated that he had only fired the shots because he was under the impression that he was shooting at the police.
On the evidence before us, it is clear that the applicant had no reasonable grounds for believing that the vehicle of the deceased was a police vehicle or that it was driven by the police at the time. Applicant was expecting the police to be travelling in a police van which was patently different from the ordinary sedan vehicle driven by the deceased at the time. Applicant had also taken no steps whatsoever in order to try to ascertain the identity of the occupants of the vehicle. If he had done so, it would have been manifest that the driver was accompanied by a 14 year old boy who was seated in the front on the passenger side of the vehicle.
On the undisputed evidence before us, the deceased was unarmed at the time and had no intention of attacking the applicant and his group. It appears that the driver's window of the vehicle of the deceased was turned down and that applicant would have had very little difficulty in observing that the deceased was unarmed and was posing no threat to applicant and his group at all.
In the circumstances we are satisfied that applicant was not pursuing any political objective at the time when he fired the fatal shots at the deceased. We are therefore not satisfied that applicant's conduct constitutes an act associated with a political objective as envisaged in the Act. Although, as indicated above, we do not regard it strictly necessary for the purposes of this decision to finally decide any of the numerous other issues raised in the hearing, we wish to indicate that we have no reason to disbelieve the evidence of Andile Jack, who was the passenger in the vehicle of the deceased at the time of the incident. This version raises serious doubts in regard to the question whether the applicant has made a full disclosure of all the relevant facts. We also wish to add that there is no conclusive evidence before us establishing the fact that the attack upon the deceased amounts to an assassination related to politics or some other cause.
In the circumstances, the application for amnesty is REFUSED.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE DENZIL POTGIETER
______
ADVOCATE F BOSMAN
______
ADVOCATE S SIGODI AC/2000/004
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 ______
OSMOND BHEKISISA NKWANYANA 1ST APPLICANT
(AM5214/97)
KETHA MPILO KHUZWAYO 2ND APPLICANT
(AM6175/97)
______
DECISION
______
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The applications relate to an incident which occurred on the 3rd May 1994 at or near the kraal of Mandlenkosi Amon Sibiya in the Mankwanyaneni Reserve, Empangeni, KwaZulu Natal. On the day in question, a group of men, including Second Applicant, shot and killed Eliakim Makhosi Mthembu and shot and attempted to kill Sibiya. Sibiya subsequently died from an unrelated cause and his interests were not represented at the hearing. The families of the deceased were legally represented in the course of the hearing but did not strenuously oppose the application. Both the applicants testified in support of the applications and no further evidence was tendered at the hearing.
Pursuant to the incident, both applicants were convicted of a number of offences which resulted from the incident and are serving long term imprisonment.
It is more convenient to deal with the position of the Second Applicant who is directly involved in the incident before considering the case of First Applicant. According to the evidence the Mankwanyaneni Reserve was experiencing a violent political conflict involving members and supporters of the African National Congress ("ANC") and the Inkatha Freedom party ("IFP"). Second Applicant is an ANC member who had received military training both inside and outside of the country, presumably under the auspices of uMkhonto weSizwe ("MK"), although this has not been expressly dealt with in the evidence. Second Applicant returned to the country in 1992. As a result of the political conflict, Second Applicant was compelled to flee his home and moved to the eSikhawini area from where he operated as a commander of the ANC combatants in the area. At some stage prior to the incident, Second Applicant received a list of names from his commander Shadrack Mdletshe who was also the chairperson of the ANC in the area. This was a hit list of persons who were destabilising the ANC election campaign in the area and who for that reason had to be eliminated. The names of both Sibiya and the deceased appeared on the list. Second Applicant selected a number of people to assist him in executing this task. A decision was taken that Sibiya should be the first target to be attacked. The plan was put into operation on the day of the incident being 3 May 1994. Second Applicant and the group of combatants whom he had selected to assist him, proceeded to Sibiya's kraal armed with one AK-47 assault rifle and three Makarov pistols. First Applicant was not part of the group and although the group met him on their way to Sibiya's kraal, he was not asked to accompany them although he is also an active ANC member, largely due to the fact that he had no training in the use of bigger firearms which were to be used in executing the plan. At the kraal, the group came across Sibiya as well as the deceased who was travelling in his vehicle at the time. The group opened fire, killing the deceased and only slightly injuring Sibiya. Sibiya was an IFP leader in the area and the deceased an IFP member and businessman who was supplying funds to the IFP for the purpose of purchasing firearms. Second Applicant executed the orders which he received from his superior and received no financial gain or other benefit from the attack. He was motivated solely by the desire to protect his community from being attacked by the IFP.
The First Applicant is more indirectly linked to the incident. He was not present at the scene of the attack and in no way participated in the actual attack. He is, however, an active ANC member who attended various meetings of the organisation where the political violence in the area was discussed. Although it was not stated with perfect clarity, it seems to be clear that the effect of his testimony was that he was present at meetings where the names on the hit list were discussed and a decision taken that these persons had to be attacked and eliminated. First Applicant stated that he was not aware of the fact that these persons were to be killed although he did not know beforehand exactly when this would happen. He fully supported the attack upon the deceased and Sibiya and regarded it as having been undertaken in execution of the resolution of the ANC. He, moreover, indicated that if he had known about it beforehand, he would personally also have participated in the attack.
Having carefully considered the matter, we are satisfied that the attack upon Sibiya and the deceased resulted from the situation of political conflict involving the ANC and IFP and as such constitute an act associated with a political objective as defined in the Act. We are also satisfied that the applicants have made a full disclosure of all relevant facts. It is clear that Second Applicant acted in execution of an order received from his superior in launching the attack in question. Although the matter was open to some debate and the evidence did not canvass the matter in sufficiently explicit terms, we are satisfied on balance that the conduct of First Applicant would render himself legally liable for the attack as a co-conspirator and on the basis of a common purpose with the perpetrators.
In all the circumstances, we are satisfied that the applications comply with all of the requirements of the Act and amnesty is accordingly GRANTED to applicants in respect of the following offences committed on or about the 3rd May 1994 at or near Mankwanyaneni Reserve, Empangeni, KwaZulu Natal:
1. The murder of Eliakim Makhosi Mthembu;
2. The attempted murder of Mandlenkosi Amon Sibiya;
3. Unlawful possession of one AK-47 assault rifle and three Makarov pistols;
4. Unlawful possession of ammunition.
In our opinion the next-of-kin of Eliakim Makhosi Mthembu are victims in relation to the murder and they are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE DENZIL POTGIETER
______
ADVOCATE F BOSMAN
______
ADVOCATE N SANDI AC/2000/005
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 ______
MICHAEL PHILLIP LUFF
(AM3814/96)
______
DECISION
______
The applicant applies for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The application relates to an incident which occurred during the night on 3 November 1985 or the early hours of the morning on 4 November 1985 at Zwelethemba township in Worcester, Western Cape, when a 17 year old youth, William Dyasi, was shot and killed by the applicant. Pursuant to the incident, an inquest was held at the Worcester Magistrate's Court during 1986. The presiding Magistrate found that applicant was legally liable for the killing of the deceased and referred the matter to the Attorney-General for further action. The Attorney-General initially declined to prosecute the applicant but reversed this decision during 1996 when the applicant was charged and the criminal trial postponed pending the outcome of this application.
Applicant testified in support of the application which is opposed by the next-of-kin of the deceased. The father of the deceased also testified during the hearing.
According to his version, applicant was at all material times a member of the uniform branch of the South African Police stationed at Ceres. At the time of the incident he was assigned to do duty with the riot unit at Worcester. During the evening of 3 November 1985, applicant and a fellow member of the Ceres police, one Constable Chris Geldenhuys, were on duty in Zwelethemba township when they received a report that a group of people were stoning the Zwelethemba community hall. They proceeded to the hall and witnessed a group of people repeatedly stoning the hall. At some stage both applicant and Constable Geldenhuys fired shots at the group with their shotguns. The group fled and applicant and Geldenhuys were unable to effect any arrests. At a later stage during the evening they became aware of a motor vehicle which transported what appeared to be an injured person from the township. Because they were in fear of their lives, applicant and Geldenhuys were unable to intervene in order to effect a possible arrest in spite of the overwhelming indications that the injured person was in all likelihood one of the earlier attackers on the hall who was injured in the shooting.
After having made the necessary official reports in regard to the incident at the hall, applicant and Geldenhuys returned to the township in order to see if they could not locate any of the attackers. It was already quite late at that stage and they were moving on foot through the township. they noticed a light that was burning in one of the outbuildings on a premises which was in the general vicinity where the motor vehicle had earlier collected the suspected injured person. Applicant and Geldenhuys approached the outbuilding in order to inspect whether one of the attackers were not possibly inside. Applicant looked inside the outbuilding and noticed a person with gunshot injuries lying on a mattress on the floor. This was the deceased. Applicant and Geldenhuys entered the outbuilding and identified the deceased, by his clothing, as a member of the group of attackers who stoned the hall earlier that evening. Upon enquiry, the deceased confirmed that he was shot earlier during the evening by the police. Applicant then arrested the deceased on a charge of public violence. The deceased was allowed to put on his shoes which he did with some difficulty, whereafter applicant held him on the arm and led him out of the outbuilding. When they came inside, the deceased freed himself from applicant's grip and started running away. Applicant pursued the deceased but stumbled over an object, which appeared to have been the stoep of the main building and fell on the ground losing his shotgun. Applicant managed to retrieve his shotgun and got up in order to continue pursuing the deceased who was fleeing into the night. It was dark and it became clear to applicant that he would not be able to catch up with the deceased. Applicant fired one round with his shotgun in the general direction in which he heard the deceased running. The running stopped and applicant discovered the deceased lying heavily wounded in the street. Help was summoned and the deceased removed to the hospital where he later died.
According to the testimony of Mr Dyasi, the father of the deceased, he had sent the deceased on the evening of the incident to go and look for the deceased's younger sister who had not yet returned home. It was getting late and he was getting concerned about her safety. Later the evening they received a message at home that the deceased was shot by the police and was at a house in Thusa Avenue where he found the deceased lying on the floor in an outbuilding. The deceased had gunshot wounds to his upper body and was clearly in a lot of pain. The deceased explained that he was walking in the street when he came across two policemen who were approaching him. The deceased thought that the police might assault him, took fright and started running away from the police when they shot him from behind. Mr Dyasi attempted to remove the deceased from the outbuilding but was prevented from doing so by the condition of the deceased. he decided to seek help from his pastor. he called at the pastor's house who subsequently accompanied Mr Dyasi to the police station where the matter was reported. While they were still present at the police station, Mr Dyasi heard a gunshot in the vicinity. He later accompanied the police to the house where the deceased was. Near to that house Mr Dyasi noticed the deceased lying outside in the street. He ascertained that the deceased had been shot again and that he was very badly wounded. One of the policemen present at the scene informed him in an aggressive manner that he had shot the deceased. After some time the deceased was removed from the scene and he eventually died.
In order to qualify for amnesty, applicant is required by the Act to make full disclosure of all relevant facts and his actions must constitute acts associated with a political objective as envisaged in the Act. The application was opposed on both these grounds.
In assessing the application we are mindful of the fact that only limited weight could be attached in the circumstances to the version of the shooting conveyed to Mr Dyasi by the deceased. We have no doubt in our minds that the evidence of Mr Dyasi is true. The possibility, however, remains that the deceased could not have conveyed a correct version of the shooting to Mr Dyasi. There are further aspects relating to the merits of the application that are also in dispute on the evidence before us such as the condition of the deceased while he was lying in the outbuilding and his ability to free himself from applicant's grip and run away. In view of the fact that the matter can be disposed of on the second requirement referred to above, we regard it as unnecessary and in fact undesirable in view of the pending legal proceedings to finally decide any of these issues. We will accordingly deal with the requirement that the applicant's conduct should constitute an act associated with a political objective in terms of the Act.
On applicant's own version, his purpose in confronting the deceased in the outbuilding and eventually shooting and killing the deceased was to prevent him from escaping in order to effect an arrest. Applicant was acting in the execution of his general duties as a police officer in combating crime. Applicant's sole reason for acting against the decease was his belief that the deceased had earlier committed an offence by stoning the community hall. Applicant was clearly not acting in pursuit of any political objective or against a political opponent. The actual identity or political affiliation of the deceased was unknown to applicant.
Having carefully considered the matter, we are not satisfied that applicant's conduct in killing the deceased constituted an act associated with a political objective as required by the Act. This in our view is determinative of the matter. The application for amnesty is accordingly REFUSED.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE DENZIL POTGIETER
______ADVOCATE F BOSMA
______
ADVOCATE S SIGODI AC/2000/006
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 ______
THANDINKOSI PETROS SOSIBO
(AM1099/96)
______
DECISION
______
On the 2nd November 1987 the applicant and others were convicted at the Durban and Coast Local Division for murder of Themba Cele. They were sentenced to many years imprisonment. The applicant received a sentence of fifteen (15) years imprisonment which he completed in 1998. It is for the said offence that he is seeking amnesty. The application arises out of an incident of the 7 August 1986 which occurred at "M" Section, Umlazi on the 7 August 1986 when a group of youths, including the applicant, attacked the deceased and his employee, Nkosinjani Lubanyana.
At the hearing the applicant was the only witness to testify in support of his application. Lubanyana who had sustained serious physical injuries as the result of the attack testified and opposed the application.
Another witness who testified was Bongani Cleopus Cele who, for the sake of clarity, will be referred to as Cele jnr. The deceased was his brother. The evidence of both witnesses shall be dealt with hereunder.
It is necessary to commence our decision with a synopsis of the background to the incident but before we do so we should mention that Umlazi is situated in the Kwa-Zulu Natal region. Since the 1980s the area has been troubled by violent conflict between ANC/UDF and the IFP. The applicant and his co-perpetrators were members of the "Umlayco" Youth Congress, an affiliate of the UDF. For the sake of clarity UDF was an umbrella body to which several anti- apartheid organisations inside the country were affiliated. An individual person could not be a member of the UDF directly and could only do so by joining one of its affiliates which include church bodies; youth organisations; women's organisations; civic organisations and many others.
The deceased operated a business of selling liquor in the Umlazi township which he used to deliver to his customers with a truck. Lubanyana and Cele jnr used to assist him and more particularly, the former who worked as a full-time employee. On a previous occasion Cele jnr was delivering liquor to customers when an amount of R500 was taken from the vehicle. At the time he had entered a house and had left the door of the vehicle open. The deceased was not present on that day and he reported the incident to him. The latter reported the incident to the police. The deceased took the police to the place where he had seen the suspects who were throwing stones at him.
As the result of a confrontation which then ensued between the police and the youths, Nkosinathi Cele was shot dead. The youths, including the applicant, believed that the deceased was responsible for the death of Nkosinathi and a meeting was held to discuss the matter. At the meeting which was attended by the applicant, it was decided that the deceased be killed. It was believed that he was an informer who worked with the police.
They also believed that he was a member of the IFP whose members were responsible for attacks on UDF supporters. According to the applicant at that stage the Umlazi area was an IFP stronghold and they had to keep their being UDF supporters a secret to avoid IFP attacks and police harassment. The applicant also testified that whilst he was away from home the deceased came there to enquire as to his whereabouts whereafter he was told that he was in Johannesburg. He was in the company of other IFP members and said he was going to shoot him. The applicant's home was at "N" Section, which area was not IFP dominated. It used to be targeted by IFP supporters. His home was also attacked several times. On a certain day he saw the deceased in a vehicle with other IFP supporters. They were going past his home and the deceased pointed it out to his IFP companions, whereafter it was attacked.
Amongst those that were in the company of the deceased was one Sabelo, a known IFP member. He could not identify the others. The applicant says in the circumstances the deceased had to be killed to prevent further attacks and killing of UDF supporters. They were also angry that he had caused Nkosinathi to be killed by the police. On the day of the attack the deceased was stabbed and "necklaced". He died on the scene. The applicant played a prominent role in the attack. he says he did not personally attack Lubanyana as he believed that he was innocent and had done nothing wrong.
Both Lubanyana and Cele jnr deny that the deceased was a member of the IFP. They say he had no political affiliation at all and in his conversations never referred to political matters and organisations. Although IFP dominated the area this did not lead to violence. They both did not know the applicant before the killing of the deceased who had never mentioned his name to them. They both agree in their testimonies that ill-feelings between the deceased and the youths started after the killing of Nkosinathi. It was a direct result of his murder. Significantly, in his evidence he testified that there was unrest in the Umlazi area and more particularly at "M" Section where the deceased was killed. It was not easy for white-owned commercial vehicles to enter Umlazi as they would be burnt by armed youths. They are however unable to say whether the evidence was politically motivated.
After considering the evidence of the applicant we are satisfied that the murder of the deceased was politically motivated. The applicant and his companions honestly believed that he was working with the police against UDF supporters and had caused the death of Nkosinathi, a UDF supporter, by pointing him out to the police. The hostility that existed between the police and supporters of liberation organisations at the time in question merits no repeating. This is a well-known historic fact and it obviously contributed in the death of the deceased, who might not have been a member or supporter of the IFP at all. In this regard the evidence of the applicant also needs reference. Although his evidence that the deceased was an IFP supporter was not very convincing, its discrepancies are not of such a nature as to detract from the attack being an "act associated with a political objective".
We accept that they acted as they did because they believed they had to do so to protect further attacks. It is also clear that the applicant and his group genuinely believed that the deceased was a police informer and an IFP supporter. The evidence discounts any possibility of malice on their part and acting for personal gain. The incident occurred as the result of the conflicts of the past.
We further accept that he has given a full disclosure of the relevant facts and has complied with the requirements of the Act.
In the result the application is GRANTED amnesty for the murder of the deceased.
The dependants of the deceased are referred to the Reparation and Rehabilitation Committee for consideration as victims in terms of the Act.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE S MILLER
______
ADVOCATE N SANDI
______
MR W MALAN AC/2000/007
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 ______
NEO IGNATIUS PHAHLANE
(AM7293/96)
______
DECISION
______
This is an application for amnesty for the attack on the Sharpeville Police Station executed on 1st October 1989 by six (6) members of an MK - cell of which the applicant was one, under the command of Keke Smith. The other members were Oupa Manete, Mothodi Dikole, Nelson Mailane and Thomas Sesele. The objective was to disarm the police and obtain weapons. Three members of the South African Police were involved, they being Esau Liutloileng, Maugele Isaac Lesibo and Stephen Madibo. They were ordered to lie on the floor. Lesibo ran out of the office, shots were then exchanged and Madibo was shot in the leg. The operation was abandoned.
This evidence was tendered by the applicant in oral testimony. All of them were apprehended and charged on a count of terrorism but the charges against Manete, Dikhole, Sesele and the applicant were withdrawn on account of them becoming witnesses for the State. In 1990 temporary indemnity was granted to Keke Smith and Nelson Mailane and the case was never proceeded with.
All three victims were present at the hearing and filed affidavits confirming the facts and supported the application.
The Committee is satisfied that the acts of the applicant in this incident were associated with a political objective committed during the conflicts of the past, that he has made a full and truthful disclosure of all relevant facts and accordingly amnesty is GRANTED to the applicant in respect of all offences related to the attack on the Sharpeville Police Station on 1 October 1989.
The Committee is further of the opinion that Esau Liutloileng, Mangoela Isaac Lesibo and Stephen Madibo are victims as contemplated in Section 26 of the Act and their names are being referred to the Reparation and Rehabilitation Committee for consideration.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE N J MOTATA
______A/JUDGE C DE JAGER
______
MR W MALAN AC/2000/008
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 ______
SIMON BAHLEZI MNYAKENI
(AM6096/97)
______
DECISION
______
This is an application for amnesty for the killing of Absalom Mnyakeni and Patrick Khumalo, as well as for assault on Brenda Ngabo, all violations having taken place on the 21st March 1992 at Daveyton in Mandela Squatter Camp. The applicant with three co-accused, Forman Mngomezulu (also an amnesty applicant - AM0187/96) whose application was heard by another panel of the Committee on the 3rd of November 1999 in Johannesburg, Agnes Nkosi and Simon Nkuna stood trial for the above and other offences and was convicted on 30th June 1993 in the Regional Court at Benoni.
Although the applicant was convicted on charges of kidnapping of Brenda Ngabo and Mongezi Dunga, as well as for assault with intent on the latter, he maintained that he was not guilty of these latter three charges and therefore did not apply for amnesty in relation to these charges.
None of the victims were traced by the Commission's staff and none of them nor any of their relatives therefore attended the hearing. The Committee was assured that everything humanly possible was done, including the placement of adverts in a newspaper, the Sowetan, asking for victims or their relatives to come forward without any success. The Committee then proceeded to hear the matter.
The version of the applicant was to the effect that the two deceased, Mnyakeni and Khumalo, were from Sundra area, but regularly visited and stayed in Mandela Squatter Camp. They were accompanied by other unknown youths. They lived a lawless life, carrying firearms and shooting at random in the camp, killing and injuring people. Applicant was a member and the Deputy Chair of the ANCYL and with other members inter alia patrolled the township. They nonetheless roamed the camp, were hosted by inhabitants and attended meetings of the Community. After such meetings where these youths attended, Youth League members were normally harassed by the police. These youths were also seen walking with radio communication equipment (walkie talkies). The Community suspected them of collaboration with the police.
On the 20th March 1992, applicant and some of his colleagues were patrolling the area for weapons. They came upon Sdudla (one of the deceased, but applicant is not able to identify him by name) and others. They were carrying firearms and they were merely disarmed, yet allowed to stay in the township.
That night one of the ANCYL members, Msebenzi, was killed and his body mutilated and another person, one Dungwane, was stabbed. Dungwane (who was also from Sundra) implicated Sdudla and his friends. The applicant and members of the community in a large group tracked the alleged perpetrators, Sdudla and one of his colleagues, down in one of the shacks where they also found a bloodstained knife and the gun of Msebenzi. They were assaulted, taken to the sports-grounds where they were further assaulted, doused with petrol and burnt alive. Applicant participated in the acts and personally set Sdudla's colleague alight. The deceased confessed to their killing of Msebenzi before they were set alight and after having been assaulted. The police arrived and those involved fled.
Brenda Ngabo, who was the girlfriend of the applicant, often kept company with the victims. She was approached by applicant coming from the sport-grounds to point out the whereabouts of the other youths from Sundra. She went with him without being forced. he did assault her because she was at first untruthful. He knows that she was also stabbed with a knife, but this was not by him. She showed him the wound after the event.
Applicant did not recall seeing Forman Mngomezulu at the incidents. he only remembers seeing him at the police station. He knows, however, that Msebenzi's girlfriend was in some way related to Mngomezulu because she called him uncle.
Although there are some inconsistencies between the testimony of the applicant and that of Mngomezulu (AM0187/96; the transcript of proceedings, the Committee had read), the Committee is of the opinion that they are not material to the application. The Committee is further satisfied that the applicant has made a truthful disclosure and given the lapse of time also a full disclosure of events, as contemplated in Section 20(1) of the Act. The Committee is lastly satisfied that the acts occurred within the political conflicts of the past and that they were associated with political objective.
Amnesty is therefore GRANTED to the applicant for the killing of Absolom Mnyakeni and Patrick Khumalo and for the assault on Brenda Ngabo. The names of the above three victims are being referred to the Reparations and Rehabilitation Committee in terms of Section 26, as the Committee is of the opinion that they are victims as defined in the Act.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE N J MOTATA
______
ACTING/JUDGE C DE JAGER
______
MR W MALAN AC/2000/009
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 ______
VIVIAN KWENZOKWAKHE BHANIYA NGCOBO
(AM3702/96)
______
DECISION
______The applicant is currently serving a long term of years imprisonment for the following offences:-
1. The murder of Bhekithemba Isaac Shandu;
2. The murder of Mbuyiselwa Petros Mbokzi;
3. Unlawful possession of a firearm in contravention of Section 2 read with Sections 1, 39 (1) (h), 39 (2) and 40 of Act 75 of 1969; and
4. Unlawful possession of ammunition in contravention of Sections 36 and 40, Act 75 of 1969.
He is now seeking amnesty in respect of the said offences. The matter arises out of an incident which occurred on the 22 March 1994 at Ngonyameni area in the region of Kwa-Zulu Natal. On that day the applicant shot and killed the two deceased and one Vusumzi Zwelonke Mkhize, an ANC supporter, was injured. The applicant claims that he was a supporter of the ANC at the time of the commission of the said offences and that he acted on its behalf. He further testified that both Mbokazi and Shandu were IFP supporters who instigated attacks on ANC followers.
The applicant testified that at the time of the occurrence of the incident there was a widespread conflict between IFP and ANC supporters and he was a member of a Self-Defence Unit (SDU) and a supporter of MK, the military wing of the ANC. As an SDU member it was his task to defend members of the predominantly ANC community.
Right from the outset it must be pointed out that Mbokazi was a local "Induna" and Shandu a peace monitor who had come to address a meeting. At the time there was taxi violence in the area and it was the purpose of the meeting to find a solution to the problem. The applicant says on the day before the scheduled meeting he was told by "Saddam" and Mashelela Khwela that there was going to be a meeting. Mbokazi, Shandu and one local Chief Cele were going to attend. His instruction was to defend ANC supporters, if attacked. At that stage he was already aware of Shandu, although he had never seen him before, who allegedly visited the area and caused ANC supporters to be attacked. Shandu was reported to be a man who was always in the company of Mbokazi. He did not know how he looked like. Previously, he had been given a firearm by Khwela, an MK unit commander, which he was to use to defend ANC supporters. He did not know who was going to address the meeting and what the purpose of the meeting was. Very strangely, Saddam and Khwela were not going to attend the meeting and it is not clear why.
When the applicant came to the meeting it had not even commenced business and people were still in the process of arriving and gathering. he saw Mbokazi in the company of a man he had not seen before and it later transpired that the man was Shandu. Cele was not there. He assumed that the man must have been Shandu and he immediately fired two (2) shots at Mbokazi and one at Shandu. After he had commenced the shooting other ANC supporters also fired and both Mbokazi and Shandu were fatally injured. Their bodies were found lying in an open space the next day. Police investigations revealed that their pockets had been searched and some personal items were taken. The vehicle in which Shandu had travelled to attend the meeting was found abandoned and it had been torched. The applicant denies having robbed the deceased and in particular taking Shandu's wallet and a wrist watch. he says some other people were suspected of having searched and burnt the vehicle. He says he left immediately after carrying out the attack. He later apologised to Vusumzi Zwelonke Mkhize who was shot by mistake. This was because Vusumzi was not against the ANC and therefore not a political enemy.
Under cross-examination the applicant changed his reasons for killing Mbokazi and Shandu and said he had been given an order to do so by Saddam and Khwela. This sudden turn-about was to be expected as he was unable to explain why he opened fire on the deceased. No attack had taken place and the deceased had not uttered a word of threat. They were just arriving at the meeting.
In the main the application is being opposed on the grounds that the applicant had no political objective but acted as a hit-man for Khwela, a taxi man who was a rival to Silwana Msomi. Mr Panday, who appeared for the relatives of the deceased, put it to the applicant that at the time of the incident there were two (2) rival taxi groups, one being led by Msomi and the other by Khwela. He further said that that was the sole cause of violence in the area. This the applicant denied and said neither Khwela nor Saddam were part of the taxi industry. They did not even have vehicles. He reiterated that there was political violence in the area and said there was no taxi violence in the area. Because of the reasons that will be given hereunder for our decision in this matter, we do not deem it necessary to make a finding as to whether the incident occurred as the result of a taxi industry related violence between the two alleged gangs or as part of an ANC-IFP feud. But suffice to say that the applicant's credibility was very unsatisfactory in a number of respects. It is also not necessary to go into a detailed analysis of all the discrepancies in his evidence. At the end of his testimony it was clear that he was not being truthful. Even if we could give him a benefit of doubt and assume that he was an ANC operative and that he went to the meeting to carry out political orders, he exceeded the terms of his mandate by shooting Mbokazi and Shandu. No attack had taken place on ANC supporters and, on the contrary, the applicant was the one to start the violence. The attack was totally unjustified in the circumstances.
In the result the application in respect of all the offences is REFUSED.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE S MILLER
______
ADVOCATE N SANDI
______
MR W MALAN AC/2000/010
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 ______
SMUTS PHILLEMON MATHEBULA 1ST APPLICANT
(AM3756/96)
CHENNY WILLIAM MORE 2ND APPLICANT
(AM3755/96)
KOKELA JEREMIAH MATJENI 3RD APPLICANT
(AM6064/97)
______
DECISION
______The applicants seek amnesty for the kidnapping and/or abduction of Moses Morudi from Potchefstroom and all other delicts and offences which relate and/or flow directly from such incident such as, inter alia, transporting him and subsequently holding and/or detaining him on a farm at Hammanskraal.
All the applicants were members of the South African Police attached to the Security Branch of the Northern Transvaal and attached to Section C under the Command of Captain Hendrik Johannes Prinsloo.
The first (Mathebula) and second (More) applicants testified that during 1987/1988 they received orders from Captain Prinsloo to look for Moses Morudi at Ikageng Township in Potchefstroom. He (Prinsloo) provided them with an address where he was temporarily hiding. He otherwise lived in Mamelodi near Pretoria.
In compliance with Prinsloo's orders they on a particular day, left in a Peugeot 404 Station Wagon. On arrival Moses Morudi was not present and the elderly people they found in the house informed them that he had gone out and would be back shortly.
They left and approximately an hour or two later went back and found him. They used pseudo names and posed as comrades who had been sent to collect him to transport him to exile where he would undergo military training. He agreed to accompany them.
Outside Potchefstroom, about 10 kilometres from Ikageng, they stopped along the main road whereupon Dos Santos, Ludick and another white Security Branch policeman driving a Skyline motor vehicle pounced upon an unsuspecting Morudi after they had identified themselves as police and placed him in their car. On the same day at approximately 17h00 they met in the parking area at Kompol Building in Pretoria in the company of Captain Prinsloo. Dos Santos and the other policeman together with Morudi were standing outside the parking area in the company of Captain Prinsloo.
More further testified that a day or two later upon the request of either Captain Prinsloo or Dos Santos, he went to a farm of retired Major Smit near Hammanskraal where, amongst others, he found Joe Mamasela and Captain Hechter whilst Moses Morudi was also there lying on a bed in a tent. However, when the first and second applicants were subsequently later requested to go and remove the tents they did not find Moses Morudi and have not seen him ever since.
The third applicant (Matjeni) testified that he was charged with guarding and cooking and feeding Morudi at the farm. He did this in shifts. On a day, he cannot recall when, he found the first and second applicants on the farm and they removed the tents. Morudi was not there and they do not know to date what happened to him.
The implicated persons, namely Captain Prinsloo, Hechter, Ludick, Dos Santos, Mokhaba and Joe Mamasela were duly notified in terms of Section 19 of the Act. Prinsloo and Dos Santos deposed to affidavits handed in where they disclaimed any knowledge of their involvement in the abduction.
Captain Prinsloo filed an affidavit where he denies any knowledge of the abduction. He however acknowledged that he had provided some information and instructions concerning and relating to the further handling of Morudi by both of them after Morudi had furnished certain information to them. It is not clear when or where such handling took place nor what information was obtained from Morudi. The affidavit does not take the matter any further.
Thomas Morudi, a brother, represented the family and testified that his brother was a member of the ANC and through harassment by the security police he left Mamelodi and hid at some family members in Potchefstroom. They received a telephone call from Potchefstroom that he had left for exile which Moses had always wanted to do. The import of his evidence was of an explanatory nature in the sense that the family wanted to find out his whereabouts. The evidence did not bear relevance to the enquiry and application before the Committee, save to confirm in the version given by the first and the second applicants of how and where Morudi was abducted.
We are satisfied that the application complies with the requirements of the Act in so far as the formalities which are laid down by the Act and regulations concerned.
The acts, omissions and/or offences which the application relates to are acts associated with a political objective committed during the conflicts of the past.
The Committee is satisfied that the applicants have also made full disclosure of all relevant facts as contemplated in Section 20(1) of Act 34 of 1995.
In the light of the aforegoing, amnesty is GRANTED to all three applicants in respect of the kidnapping and abduction of Moses Morudi and all other offences or delicts which relate or flow from such an incident.
The Committee is further of the opinion that the relatives of Moses Morudi are victims as contemplated in Section 26 of the Act and are referred to the Reparation and Rehabilitation Committee for consideration.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE S KHAMPEPE
______
ADVOCATE N J MOTATA
______
MR W MALAN AC/2000/011
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 ______
ANTHONY SBONELO NDLOVU
(AM6431/97)
______
DECISION
______
The applicant applies for amnesty in respect of the kidnapping and murder of Velaphi Victor Mthetwa (The Deceased) which took place at or near Mpumalanga in Kwa-Zulu Natal during July 1989.
At the time of his death the Deceased was a member of the Inkatha Freedom party (the IFP) and was the secretary of the local branch of that Party in Mpumalanga. The Applicant was a supporter of the African National Congress (the ANC).
Both the applicant and the deceased lived in the Mpumalanga area and both of them worked at Rainbow Chickens in Mpumalanga.
At the time in question political violence was rife in the Mpumalanga area. The violence, which involved supporters of the IFP on the one side and supporters of the ANC on the other, was on-going and resulted in many people being killed and injured and much property being destroyed.
The applicant stated that one day at work the deceased insulted him by calling him an I-kulu, a derogatory term used by IFP members when referring to members of the ANC. An argument ensued and the applicant threatened to kill the deceased. The applicant avers, however, that this was an empty threat and was not the reason why he and his colleagues some time later decided to kill the deceased. He stated that thereafter it was noticed that the deceased played an increasingly prominent role in the violence directed by the IFP against the ANC. According to the applicant the deceased identified certain ANC activists which led to them being executed, he acted in concert with IFP warlords and was also a police informer.
The applicant and some of his comrades, who had formed themselves into a self-defence group, namely Mandla Khanyile, the leader of the group and Mabongi Nzimande decided that the deceased should be killed because of the loss of life and grief he was causing in the ANC community.
Thereafter the applicant, Mabongi Nzimande and two other members of their group, namely Bhekisisa Shelembe and S'gadla Magubane abducted the deceased at a taxi rank. They took him to Bhekisisa's house where they interrogated him about where the IFP hid their weapons. Mabongi then took the deceased to an abandoned house. The applicant followed with the intention of killing the deceased at that house. When the applicant arrived at the house he discovered that Mabongi had already stabbed the deceased to death.
Approximately three weeks later the applicant was arrested in respect of the death of the deceased. However, he never stood trial as the charges against him were withdrawn.
The applicant was the only person to testify at the hearing of this matter. An affidavit deposed to by one Alpheus Mdudusi Mbanjwa was handed in by consent. The applicant, both in the application form completed by himself and in his testimony implicated Mr Mbanjwa in the planning of the death of the deceased. Mr Mbanjwa, in his affidavit, denied any involvement in the incident.
After having considered the evidence and documentation placed before us we are of the view that the deceased was not killed solely because he had insulted the applicant at his workplace. We are satisfied, particularly in taking into account the senior position the deceased held in the local branch of the IFP and the fact that political violence between the IFP and the ANC was rife in the area, that the deceased was identified as a legitimate target by the Chairperson and his colleagues and that his abduction and murder were crimes associated with a political objective committed in the course of the conflicts of the past. We are also satisfied that the applicant has made full disclosure of all relevant facts pertaining to such crimes. We are also of the view that the Chairperson, although he did not kill the deceased himself, is liable in respect of the murder, at least at the level of being an accomplice.
In the circumstances the application succeeds and the applicant is GRANTED amnesty in respect of the kidnapping and murder of Velaphi Victor Mthethwa which took place at or near Mpumalanga during or about July 1989.
We are of the opinion that the dependents of the deceased are victims and this matter is referred to the Committee on Reparation and Rehabilitation for consideration in terms of Section 26 of Act no. 34 of 1995.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE S MILLER
______
ADVOCATE N SANDI
______
MR W MALAN AC/2000/012
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 ______
XHAWULANI THULASIZWE NGCOBO
(AM8026/97)
______
DECISION
______
The applicant applies for amnesty in respect of the murders of Cebo Majola, Simiso Bhenqu, Shoti Ndulini, Bhekizani Nzuza, Mandlethu Ngcobo, Ngoma Shelembe, Sihle Mkhize, Siyanda Nqubane, Ncamisile Zimu and Sqwili Zimu.
All the murders took place at Kwa Nyavu in the Table Mountain area, Kwa-Zulu Natal. The murders of the first eight of the abovementioned victims were committed during the period 1991 and 1992. The applicant was never charged in respect of any of these murders. Ncamasile Zimu and Sqwili Zimu were murdered during 1996. The applicant was convicted in respect of these two murders and was sentenced to undergo an effective term of imprisonment of 25 years. The application in respect of the murders of Ncamasile Zimu and Sqwili Zimu cannot be considered by this Committee as they were committed after the final cut-off date of 10 May 1994.
The applicant states that during all relevant times he was a member of the Inkatha Freedom Party (the IFP) and was the secretary thereof in the Kwa Nyavu area. He stated that he received military training in the use of firearms at Amatikulu.
Cebo Majola was killed on 30 August 1991. According to the applicant he was a supporter of the ANC. The applicant states that he received information from Vukani Ngcobo, that Cebo Majola was one of the persons who attacked the applicant's home during 1987. The applicant relayed this information to Thwalitshe Ntombela, the Chairman of the local branch of the IFP and Bernard Mkhize and Bonani Phetha who were both Chairmen of the other branches of the IFP. A meeting was held between these persons and it was decided that Cebo Majola should be killed. The applicant together with Skosipi Ndunge, one Nkonyisa and one Simpiwe, thereafter laid in ambush for Cebo Majola at a bus stop as they knew that he would be arriving from Durban on the bus. The bus arrived and Cebo Majola was shot and killed by the applicant when he alighted therefrom.
The applicant states that Simiso Bhengu was also killed by him and the said Simpiwe after having received instructions from Twalitshe Ntombela to do so. Simiso Bhengu, like Cebo Majola, was also killed in an ambush at the bus stop. His killing took place during 1992. The applicant states that the instruction to kill him was issued after information was received that Simiso Bhengu, in the company of the other persons, had gone to the applicant's girlfriend's house and tried to take her away under the false pretence that the applicant had sent them to fetch her. The applicant also alleges that Simiso Bhengu, who was an ANC supporter, on two occasions had shot at him and his companions. According to an affidavit signed by Fika Bhengu, the eldest brother of Simiso Bhungu, the deceased, was not involved in any political activity.
With regard to the murders of Shoti Ndulini, Bhekizani Nzuzu, Ngoma Shelembe and Mandlethu Ngocobo, the applicant stated in an affidavit deposed to by himself on 18 September 1999 and also when giving evidence in chief at the hearing that all such persons were killed on the same night during 1992. When giving evidence in chief he stated that he, Simpiwe Ntombela, Sikhosiphi Mdunge and Nkanyiso Ndlovu went on an operation to attack the house of one Mlambo. On their way to the house they saw a number of soldiers and decided to abort the operation. On their way back home they came across Messrs Ndulini, Nzuza and Shelembe. Simpiwe Ntombela shot and killed all three of them. The reason given by the applicant for the murders was that they had received instructions to kill anybody who may identify them or who was a supporter of the ANC. He, the applicant, believed that they were ANC supporters as they were walking around in an area which was a "no-go" area for IFP supporters.
Shortly after the shooting of Messrs Ndulini, Nzuza and Shelembe they came across Mandlethu Ngcobo. He too was shot and killed by Simpiwe Ntombela. Mandlethu Ngcobo was the applicant's uncle. He was an elderly man, over 70 years of age. The applicant stated that he was killed because he was an ANC supporter who supplied arms to members of the ANC.
When being cross-examined by Ms Jelal, who appeared on behalf of the victims, the applicant stated that Ngomo Shelembe was not killed at the same time as Shoti Ndulini and Bhekizani Nzuza. He said that he was killed some months later in his, the applicant's, presence by Bernard Mkhize at a traditional ceremony.
The applicant, in his affidavit deposed to on 18 September 1999, the correctness of the contents of which he confirmed when he testified at the hearing, described the murders of Sihle Mkhize and Siyanda Ngubane as follows:
"Again in 1992 I shot Sihle Mkhize with an AK-47 rifle and Siyanda Ngubane, both at the same time. I shot them at Nkanyezini area. I was with Nkanyiso, Simpiwe, Mabhungu and Sikhosiphi. They did not shoot. We hated the ANC so much that we wanted to kill them and sweep the area clean."
However, when testifying at the hearing, the applicant said that they were not killed at the same time. He stated that Sihle Mkize was killed because he and other persons abducted the applicant's girlfriend and assaulted her. The applicant reported this to his leaders who decided that Sihle Mkhize should be killed. The applicant then, when in the company of Simphiwe Ntombela, Nkanyiso Ndlovu, Sikhosiphi Ndunge and Mabhungu, shot and killed Sihle Mkhize.
With regard to the killing of Siyanda Ngunbane, the applicant testified that he received instructions from his leaders to kill him at a traditional ceremony. The applicant, together with Simphiwe Ntombela, Nkanyiso Ndlovu, Sikhosiphi Ndunge and Mabhungu, proceeded to the traditional ceremony where applicant shot and killed Siyanda Ngubane.
The first time that applicant gave any detail of the killing of Ndabo Nqcamu was when he was being cross-examined at the hearing of this matter. He said that one day police came to his house to search for weapons. They informed him that Ndabo Ngcamu had told them that applicant had firearms at his home. The police did not find any weapons. The applicant then reported the matter to his leader who requested to see Ngcamu as he was an IFP supporter. A messenger was sent to Ndabo Ncgcamu instructing him to see Mr Twalitshe Ntombela. The message was not heeded and applicant then personally went to see Ndabo. He explained the allegations against him and advised him to go to Mr Ntombela. Again Ndabo Ngcamu failed to go to Mr Ntombela. The applicant was then instructed to kill him. The applicant and Simpiwe then went to Ngcamu's house where the applicant shot and killed him.
The applicant testified that during the period that these killings took place political violence was rife in Kwa Nyavu. The conflict between IFP and the ANC was very intense, to such an extent that it was dangerous for IFP supporters to be in certain area.
Simpiwe Constable Shelembe was called as a witness by Ms Jelal. He disputed the applicant's evidence relating to the extent of the political conflict in the area. He stated that Kwa Nyavu was predominantly an IFP area and that by 1991 the political conflict in the area had decreased. Open fighting had come to an end and there were not any so-called "no- go" areas.
The applicant was an unsatisfactory witness. He, on ore than one occasion, not only contradicted his own testimony but also contradicted a previous statement made by himself. He also seemed to make up his version of events when attempting to answer questions put to him in cross-examination. Examples in this respect are his statement that he killed Messrs Ndulini and Nzuza in a "no-go" area and him personally going to see Ndabo Ngcami. We find Mr Shelembe to have been an honest witness and accept his evidence that Kwa Nyavu, at that time, was predominantly an IFP area and that there were no "no-go" area and him personally going to see Ndabo Ngcami. We find Mr Shelembe to have been an honest witness and accept his evidence that Kwa Nyavu, at that time, was predominantly an IFP area and that there were no "no-go" areas there for IFP supporters.
The unsatisfactory features of the applicant's evidence affect his credibility to such an extent that no reliance can be placed on his testimony in respect of any of the killings. We are accordingly not satisfied that he has made a full disclosure of all relevant facts.
We also, when taking into account all the information before us, cannot positively conclude that the murders were committed with a political objective. Many of the killings, on applicant's own version, affected applicant's personal life rather than the community at large. Persons killed included persons who allegedly attacked his father's house in 1987 and also who harassed and/or assaulted his girlfriend. In addition, affidavits filed by many of the victims' close relatives state that the victims were either apolitical or supporters of the IFP.
We are accordingly of the view that the applicant's application does not satisfy the criteria set out in The Promotion of National Unity and Reconciliation Act, No. 34 of 1995. The application for amnesty is therefore REFUSED.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE S MILLER
______
ADVOCATE N SANDI
______
MR W MALAN
AC/2000/013
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 ______
NKAMONA PAUL ANDREW MATHABATHE
(AM6042/97) 1ST APPLICANT
GEORGE SONNYBOY MOGAPI 2ND APPLICANT
(AM6037/97)
SANDILE SHEPHERD NDLUNGWANE 3RD APPLICANT
(AM6064/97)
LINDA PRECIOUS MNTAMBO 4TH APPLICANT
(AM6135/97)
SAZI RONNIE NDLOVU 5TH APPLICANT
(AM6043/97)
______
DECISION
______
Nkamona Paul Andrew Mathabathe (the 1st Applicant), George Sonnyboy Mogapi (the 2nd Applicant), Sandile Shepherd Nklungwane (the 3rd Applicant), Linda Precious Mntambo (the 4th Applicant) and Sazi Ronnie Ndlovu (the 5th Applicant) were at all relevant times members of the African National Congress (the ANC) and members of uMkhonto weSizwe (MK) who operated together as a unit in the Soweto area. The commander of the unit was one Simon Modise, second in command was one Bless Monde and the 4th Applicant was third in command.
During 1988 while an industrial strike was being conducted by municipal workers over grievances concerning the wages of Soweto Council employees, it was decided by the applicants' unit to intimidate certain persons who they, on information received, believed were opposed to the strike and who were supporting the Council in the stance it had taken against the striking employees.
To this end it was decided to attack the houses of Mr Monamodi, a foreman plumber in the employ of the Soweto Council and Ms Sithole, a social worker. They also decided to confront Dr Matsie, who they believed to be influential in decision making at the Council.
The 2nd, 3rd and 4th Applicants, as well as another member of the unit, one Mbata, proceeded one night to the house of Mr Monamodi. They waited for the lights to be switched off when the 4th Applicant threw a hand grenade through the dining room window. The grenade was thrown into the dining room as it was not their intention to injure anyone. No one was injured in the blast.
The same three applicants as well as the said Mbata also went to the house of Ms Sithole. The 4th Applicant lobbed a grenade which exploded in the yard of the premises, close to the front door. No one was injured in the explosion.
The same three applicants and the said Mbata thereafter proceeded to the house of Dr Matsie. Their intention was to confront him and threaten him to desist opposing the strike. The 2nd and 3rd Applicants remained in their vehicle which was parked near the house. The 4th Applicant and Mbata went to the house and knocked on the door and upon seeing them screamed in fear. A person with a dog approached. He released the dog. Mbata shot the dog and then, with the 4th Applicant, fled to the vehicle and drove off.
Sometime thereafter it was decided by members of the unit to kill a Mr Shomani, a policeman who was stationed at the Protea Police Station. It was decided to kill him as the police were at that time considered by MK to be legitimate targets. The 1st, 3rd, 4th and 5th Applicants proceeded to Mr Shomane's house in Dube. The plan was that a stone would be thrown through a closed window of the house and when Mr Shomane came out to investigate he would be shot by the 4th Applicant. The 4th Applicant threw a stone at a window and smashed it but nobody came out of the house. The said applicants then abandoned the operation.
Approximately one month later it was decided to kill a lodger at Mr Shomane's premises, who was also a policeman. He was a member of the Security Branch of the police. His name is not known. The 2nd and 4th Applicants proceeded to Mr Shomane's residence. They waited for their target to return home. He eventually arrived in a motor vehicle. As he was opening the driveway gate, the 4th Applicant approached him and shot him at close range. The 4th Applicant learnt later that he died.
During or about November 1988 the person who was second in command of the unit issued an instruction that a Fidelity Guard van be robbed. The reason given for the decision was that funds were required by the unit primarily to bribe policemen who were guarding the commander of the unit, Simon Modise, who was in police custody in a hospital. On 5th November 1988 the 1st, 2nd, 4th and 4th Applicants proceeded to the Totalisator at Dube where they took up positions and waited for the arrival of the cash in transit van. The 4th Applicant was armed with an AK47 rifle and the 1st Applicant was in possession of a knife. The other two were unarmed.
The van arrived and two of the guards entered the Totalisator premises. They later emerged therefrom with two steel trunks. The 4th Applicant approached them and opened fire. The guards returned fire. The applicants took possession of the steel trunks, got into their vehicle and sped off. Two of the security guards were injured in the incident. The 4th Applicant was also injured.
The steel trunks contained approximately R76 000.00 in cash. Approximately R4000.00 of that amount was used to pay for the hospital and medical expenses incurred in respect of the treatment of the 4th Applicant's injury. R1000.00 was paid to a nurse who arranged for the 4th Applicant's transport to and admission into a hospital under a false name. The balance of the money was handed over to Bless Monde.
During 1988 the 4th Applicant together with the said Mbata attacked a traffic policeman at or near Mofolo Park. The intention of the attack was primarily to dispossess him of his firearm. Traffic policemen were also considered as legitimate targets by MK, as they were, because their powers of search and arrest, seen as part of the structures that bolstered the apartheid government. They approached the traffic policeman who was sitting in a motor vehicle. They knocked on the window of his vehicle. The traffic policeman pulled out his firearm. The 4th Applicant shot at him and both he and Mbata fled the scene. The 4th Applicant heard later that the traffic policeman died as a result of the shooting.
Also during 1988 the 4th Applicant planted a limpet mine which exploded at a sports ground at Turfontein. The mine was placed behind the bar at the sports ground to ensure that no one was injured in the blast. It was a so-called propaganda operation to let it be known that MK has a presence in the White suburbs. Nobody was injured in the blast.
The 4th Applicant was arrested by the police and detained at the Jeppe Police Station. Being an MK cadre, it was his duty to endeavour to escape. On or about 31st May 1989 he escaped after stabbing the officer on duty with a sharpened spoon.
During 1992 the 3rd Applicant was arrested for being in possession of a Makarov pistol and ammunition. He possessed such pistol in his capacity as an MK cadres, he having received it from MK. He was convicted in respect thereof and was sentenced to undergo six months imprisonment or pay a fine of R2000.00.
After having heard the evidence and having considered the documentation placed before us, we are satisfied that all the offences committed by the applicants as set out above were acts associated with a political objective committed in the course of the conflicts of the past. In each instance the applicants acted as members of the MK in furtherance of the aims of the political movement they were members of, the ANC. While we are aware that this was not the policy of the ANC to rob civilian targets, we, after careful deliberation, are of the view that the applicants participation in the robbery of the Fidelity Guard van was done under orders received from their commander and with the intention to benefit MK rather than themselves personally.
We are also satisfied that the applicants have made full disclosure of all the relevant facts and that their applications comply with the requirements of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995.
In the result, their applications succeed and:
1. Nkamona Paul Andrew is GRANTED amnesty in respect of:
i. the conspiracy to murder Mr Shomane and the malicious damage caused to the property of Mr Shomane at or near Dube during 1988; and
ii. the armed robbery of a Fidelity Guards van and the attempted murders of Messrs P.A. Viljoen, H.C. Jansen van Vuuren, Plaatjies and Swart on or about 5th November 1988 at Dube.
2. George Sonnyboy Mogapi is GRANTED amnesty in respect of:
i. the malicious damage caused to the property of Mr Monamodi at Soweto during 1988;
ii. the malicious damage caused to the property of Ms Sithole at Soweto during 1988;
iii. the unlawful shooting of a dog at the property of Dr Matsie at Soweto during 1988;
iv. the murder of an unknown policeman at the property of Mr Shomane at Dube during 1988; and
v. the armed robbery of a Fidelity Guards van and the attempted murders of Messrs H.C. Jansen van Vuuren, P.A. Viljoen, Plaatjies and Swart at Dube on or about 5th November 1988.
3. Sandile Shepherd Ndlungwane is GRANTED amnesty in respect of:
i. the malicious damage caused to the property of Mr Monamodi at Soweto during 1988;
ii. the malicious damage caused to the property of Ms Sithole at Soweto during 1988;
iii. the unlawful shooting of a dog at the property of Dr Matsie at Soweto during 1988;
iv. the conspiracy to murder Mr Shomane and the malicious damage caused to the property of Mr Shomane at or near Dube during 1988; and v. the unlawful possession of a Makarov pistol and ammunition during 1992 in respect of which the 3rd Applicant was convicted and sentenced to undergo six months imprisonment or pay a fine of R2000.00.
4. Linda Precious Mntambo is GRANTED amnesty in respect of:
i. the malicious damage caused to the property of Mr Monamodi at Soweto during 1988;
ii. the malicious damage caused to the property of Ms Sithole at Soweto during 1988;
iii. the unlawful shooting of a dog at the property of Dr Matsie at Soweto during 1988;
iv. the conspiracy to murder Mr Shomane and the malicious damage caused to the property of Mr Shomane at or near Dube during 1988; and
v. the murder of an unknown policeman at the property of Mr Shomane at Dube during 1988; and
vi. the armed robbery of a Fidelity Guards van and the attempted murders of Messrs H.C. Jansen van Vuuren, P.A. Viljoen, Plaatjies and Swart at Dube on or about 5th November 1988;
vii. the murder of an unknown traffic officer at or near Mofolo Park during 1988;
viii. the unlawful placing and setting off of a limpet mine at a sports ground in Turfontein during 1988;
ix. the unlawful escape from lawful custody at the Jeppe Police Station and the attempted murder of an unknown policeman on or about 31st March 1989; and
x. the unlawful possession of firearms and ammunition and explosive material (hand grenades and a limpet mine) during 1988.
5. Sazi Ronnie Ndlovu is GRANTED amnesty in respect of:
i. the conspiracy to murder Mr Shomane and the malicious damage caused to the property of Mr Shomane at Dube during 1988; and
ii. the armed robbery of a Fidelity Guards van and the attempted murders of Messrs H.C. Jansen van Vuuren, P.A. Viljoen, Plaatjies and Swart at Dube on or about 5th November 1988.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE S MILLER
______ADVOCATE C DE JAGER
______
ADVOCATE S SIGODI
We are of the opinion that Mr Monamodi, Ms Sithole, Dr Matsie, Mr Shomane, the immediate family of the unknown policeman who was murdered at Mr Shomane's property, Mr H C Jansen van Vuuren, Mr P A Viljoen, Mr Plaatjies, Mr Swart, the immediate family of the unknown traffic officer who was murdered at Mofolo Park and the unknown policeman who was stabbed by the 4th Applicant at the Jeppe Police Station on 31st May 1989 are victims and this matter is referred to the Committee on Rehabilitation and Reparations for consideration in terms of the provisions of the Act. AC/2000/064
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.
ISAAC NTOKA APPLICANT
(AM 1206/96)
DECISION
The applicant is GRANTED amnesty in respect of:-
(a) The murder of an unidentified male person on or about the 21 August 1992;
(b) The unlawful possession of fire-arm and ammunition during the period of 1992 - 1993; and
(c) Public violence committed during the period 1992 - 1993.
DATED AT PRETORIA ON THIS DAY OF 2000.
JUDGE R PILLAY
ACTING JUDGE N J MOTATA
ADV S SIGODI AC/2000/077
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.
MICHAEL MORUDI PHASHA 1ST APPLICANT
(AM 1221/96)
DANIEL LISUFI PHASHA 2ND APPLICANT
(AM 1319/96)
DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995, as amended (hereinafter referred to as "the Act").
The Applicants are brothers who hail from a traditional community in a remote rural area, Driekop in the Northern Province where Abram Madibeng Phasa ("the deceased") was murdered on 14 February 1993. Pursuant to this incident Applicants were convicted in the Lydenburg Regional Court of the following offences:
(i) murder;
(ii) contravention of section 1(a) of the Witchcraft Suppression Act 3 of 1957 by imputing witchcraft to the deceased;
(iii) contravention of section 1(a) of Act 3 of 1957 in respect of Johannes Mmaletswai Phasha.
The Applicants were each sentenced on 28 June 1995 to an effective 13 years imprisonment which sentence they are presently serving. The amnesty applications relate to the above convictions. We may interpose here that a third brother, Lipson Lebjana Phasha, is a co-applicant for amnesty in respect of the same incidents and is also presently serving an effective seven years imprisonment pursuant to his conviction on the first two counts referred to above. He is presently hospitalised for an undisclosed period. Mr Richard, who appeared for the Applicants and was also instructed to represent Mr Phasha, indicated to us that his instructions are to proceed with the present applications, given the lack of any clarity as to the condition and expected period of hospitalisation of Mr Phasha, whose application will be dealt with at a later stage.
In our view it is in the interest of justice that the matter be dealt with on the suggested basis and for the application of Mr Phasha to stand over for later determination.
The next-of-kin of the deceased were legally represented at the hearing by Mr Mokoena, but they did not formally oppose the applications.
The salient features of the matter can be set out succinctly as follows. Moses Phasha ("Moses"), the Applicants' cousin, disappeared during January or early February 1993. All attempts to locate him failed. He lived with First Applicant, Michael Morudi Phasha, at the time. Moses was either a supporter or member of the African National Congress Youth League ("ANCYL") for some time prior to his disappearance.
At the time of the launch of the ANCYL in Driekop, the Chief in the area, N.W. Mashabela, clashed with the youth and attempted to stop the launch. It was apparent that the Chief was opposed to the ANCYL and a hostile relationship developed between the parties as political adversaries. The members of the ANCYL held the belief that the Chief enlisted the assistance of certain members of the community who were regarded as exercising witchcraft, to eliminate the ANCYL in the area. The latter consequently also regarded these persons as their political enemies. The members of the community at Driekop, including the Applicants, held a deep seated belief in witchcraft. Members of the ANCYL held the bona fide belief that the persons in question were using their supernatural powers to harm them and eliminate potential future community leaders among the ranks of the ANCYL, in support of the Chief. This was regarded as a serious threat to the ANCYL.
Soon the ANCYL linked the disappearance of Moses to the activities of the perceived practitioners of witchcraft. Matters came to a head on 14 February 1993 when the Chief was approached by a group in excess of 500 ANCYL members and supporters who held a meeting in his kraal. The upshot of this was that the Chief summoned one of his traditional healers to attend at his kraal and assist the group to determine the whereabouts of Moses. This person never appeared and the crowd eventually confronted another member of the community who was regarded to have the necessary information about the identity of the persons responsible for Moses' disappearance. This person identified the deceased, who was perceived to be a witchdoctor, as one of the culprits. The group proceeded to the deceased who was confronted and questioned by second Applicant, Daniel Lisufi Phasha. The deceased admitted his involvement in the disappearance of Moses. Second Applicant realised that the deceased was about to be killed by the group which included members of the ANCYL leadership. He left the scene with a part of the group in search of another suspect.
The deceased was stoned by the crowd who was singing and chanting political slogans. First Applicant threw the first stone at the deceased who eventually died of head injuries.
The body of Moses was discovered some months later hanging from a tree. Some of the body parts had been removed from the body in a style reminiscent of a muti-killing.
Having carefully considered the matter, we are satisfied that the killing formed part of the political strife between the ANCYL on the one hand and the Chief and his perceived supporters on the other. It is clear that bona fide perceptions about their association with and support of the Chief, led to the perceived witchdoctors being regarded as their political enemies by members of the ANCYL. On the whole, in our view, the issue of witchcraft did not play a determining role in the decision to kill the deceased. It was rather his complicity in the disappearance of Moses in furtherance of the Chief's political struggle against the ANCYL. It was clear that by the same token the deceased was regarded as an enemy of the ANCYL and his murder was seen as the elimination of a political enemy.
Although Second Applicant did not physically participate in the attack upon the deceased and was not on the scene at the time of the killing, we are satisfied that his actions rendered him liable for the killing on the basis of common purpose in spite of his evidence that he did not desire the death of the deceased. This coincides with the finding of the trial court. First Applicant played a leading role in the attack upon the deceased.
We are also satisfied that the Applicants made a full disclosure of all relevant fact and that their relevant actions constitute acts associated with a political objective as envisaged in section 20 of the Act. The applications accordingly comply with all the requirements of the Act.
In the circumstances the Applicants are GRANTED amnesty in respect of the following offences committed on or about 14 February 1993, at or near Driekop, Northern Province:
(i) the murder of Abram Madibeng Phasha;
(ii) a contravention of section 1(a) of Act 3 of 1957 in respect of Abram Madibeng Phasha; (iii) a contravention of section 1(a) of Act 3 of 1957 in respect of Johannes Mmaletswi Phasha.
In our opinion the next-of-kin of the late Abram Madibeng Phasha are victims in respect of the murder and they are referred for consideration in terms of section 22 of the Act.
DATED AT CAPE TOWN THIS DAY OF MAY 2000.
JUDGE DENZIL POTGIETER
ADV N SANDI
MR J B SIBANYONI AC/2000/078
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.
SIPHO JIMMIE MTANDI APPLICANT
(AM 7351/97)
DECISION
This is an application for amnesty in terms of section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995, as amended. It relates to two incidents namely:
i. Placing 2 limpet mines at Orlando Police Station during October 1989 and
ii. Attacking Sgt. Morget's house by throwing a handgrenade and shooting with AK 47 rifles during December 1989.
The applicant was never arrested for the incidents. He testified that he is a member of the African National Congress (ANC) and that during 1989 he was recruited by the late Siswe Sithole to join the then underground structures of the ANC namely Umkhonto We Siswe (MK). Sithole was applicant's commander and applicant was second in command in their MK unit. Applicant underwent military training by doing a crash course which took about four (4) days. Members of the unit regularly met at various venues at White City in Soweto where they discussed and planned their MK activities. Among others, the applicant's duties entailed guarding Mrs Winnie Madikizela-Mandela's house and family and protecting students as well as monitoring their activities.
Sithole gave the applicant two limpet mines and ordered him to attack the Orlando police station. Because there were members of the public and police at the targeted building the applicant decided to place the devices in a toilet of the police station. They were discovered and detonated by the police. He reported this to his commander.
He further testified that he was questioned by Mrs Madikizela-Mandela whether it was him who placed the devices at the police station and he confirmed. When asked whether there were any casualties, his answer was negative.
One morning in December 1989 Sithole informed the applicant that there was an operation they would conduct during the evening. Indeed at about 20h00 in the evening Sithole fetched a certain Norman Madopa who was the driver of the get-away-car, a blue Stanza. They collected the applicant and Goodman. Sithole gave the applicant an AK47 rifle and ordered him to participate in the attack on Sgt. Morget's house who was viewed by the comrades as sell-out as he was very active in harassing comrades. Norman was told about the purpose of the mission but not Goodman.
On arrival at their destination, Norman was instructed to park the car at a strategic place for getting away easily. Goodman armed with a .28 gun remained in the street, probably for keeping a look out. Applicant and Sithole then attacked the house. Sithole threw a handgrenade at the house and immediately it exploded, the applicant and Sithole jumped a fence into the premises and started shooting with AK 47s. They emptied their magazines and retreated to the car. It could not start. They pushed it and drove away.
Although she did not give orders, Sithole told the applicant that Mrs Mandela was fully aware of the operation. It is applicant's testimony that their political motive in targeting the police station and the police is because, as the ANC, they viewed the police as enemies. They attacked the building and the policeman's house in order to instil fear in the police and cause them to resign from the police force.
The applicant has no knowledge of the extent of the damage caused during the operation nor whether any person was injured at Morget's house, except that the windows were broken.
He told the committee that he was informed by Mrs Madikizela-Mandela that Sithole was arrested by the police for the incident. He died in detention.
We are satisfied that the application complies with the requirements of the Act concerning the technical formalities, that the applicant's acts were acts clearly connected with a political objective and that the applicant has made full disclosure of all material facts.
In the result the applicant is GRANTED amnesty for:
a. placing two land mines at Orlando police station, Soweto during October 1989
b. participating in attacking Sgt. Morget's house by throwing a hand-grenade and firing rifles at it.
c. Any offence or delicts directly arising out of the incidents of October and December 1989 at the police station and Sgt. Morget's house respectively.
It is recommended that Sgt. Morget and his family be deemed victims and are hereby referred to the Reparation Committee for its consideration.
DATED AT THIS DAY OF 2000.
JUDGE S MILLER
___
A.J. C DE JAGER (SC)
MR J B SIBANYONI AC/2000/079
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.
______
THAMSANQA NORMAN TSHOKO 1ST APPLICANT
(AM 6211/97)
NKULULEKO FREEDOM SIDIYA 2ND APPLICANT
(AM7850/97)
______
DECISION
______
Thamsanqa Norman Tshoko (hereinafter referred to as "the 1st Applicant) and Nkulukeko Freedom Sidya (hereinafter referred to as "the 2nd Applicant") apply for amnesty in respect of the murder of Silomo Shadrack Gazu which took place on 28 January 1993 at Boipatong.
Political violence persisted in Boipatong after the infamous Boipatong Massacre and tensions between African National Congress (ANC) supporters and Inkatha Freedom party (IFP) supporters were extremely high. Both Applicants were ANC supporters.
The ANC supporters who resided in Boipatong organised regular patrols of the streets. The object of these patrols was to prevent attacks from IFP supporters. On 28 January 1993 the 1st Applicant participated in one such patrol. The patrol consisted of a large number of persons.
The 1st Applicant testified that they came across Mr Silomo Shadrack Gazu (hereinafter referred to as "the Deceased") in Majola Street. The Deceased was searched and was found to be in possession of a card that reflected that he resided in the KwaMadala Hostel and that he was therefore an IFP member or supporter. The members of the patrol then commenced to assault him. He was kicked, beaten and struck with a variety of objects. The 1st Applicant kicked him and also hit him on the ribs with a brick. After the Deceased had fallen to the ground, paraffin was poured over him and he was set alight. He died as a result of the injuries sustained in the assault upon him.
The 2nd Applicant testified that he was working in a shop in the close vicinity to where the patrol came across the Deceased. A person came into the shop and demanded paraffin. The 2nd Applicant provided him with paraffin and went out of the shop with him to where the Deceased was. When 2nd Applicant heard that the Deceased was an IFP supporter, he too participated in the assault by kicking the Deceased.
Both Applicants, together with a number of other people, were later arrested and charged with the murder of the Deceased. The matter never went to trial as the charges were withdrawn due to the lack of evidence.
It is clear from the evidence before us that the motive for the murder of the Deceased was political and we are satisfied that the 1st and 2nd Applicants' participation in the murder were acts committed with a political objective as contemplated by the provisions of the Promotion of National Unity and Reconciliation Act 34 of 1995. We are also satisfied that both Applicants have made a full disclosure of all relevant facts and that their applications comply with the requirements of the aforesaid Act.
In the circumstances the applications succeed and:
1. Thamsanqa Norman Tshoko is GRANTED amnesty in respect of the murder of Silomo Shadrack Gazu which was committed on 28 January 1993 at Boipatong;
2. Nkululeko Freedom Sidiya is GRANTED amnesty in respect of the murder of Silomo Shadrack Gazu which was committed on 28 January 1993 at Boipatong.
We are of the opinion that the family of Mr S S Gazu are victims and this matter is referred to the Committee on Reparation and Rehabilitation for consideration.
DATED at CAPE TOWN this day of 2000
______
JUDGE S MILLER
______
JUDGE N J MOTATA
______
MR J B SIBANYONI AC/2000/080
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.
______
MICHAEL GAOPALWLE LESHOMA APPLICANT
(AM 7748/97)
______
DECISION
______
The Applicant applies for amnesty in respect of the murder of Petronella Johanna Barnard and Willem Kasselman Fick, the attempted murder of Jacobus Johannes Christiaan van Meyeren and Hezekeil Mbelaphonsi Malinga and five robberies with aggravating circumstances.
All of these crimes were committed by the Applicant together with other co-perpetrators on 15 May 1991 when they carried out a robbery at the First National Bank at Witbank.
The Applicant at the hearing of this matter stated that at the time in question he was a supporter of the Pan Africanist Congress (the PAC). He became a card carrying member of the PAC on 8 July 1997. The Applicant's testimony relating to the incident may be briefly summaries as follows:
During April 1991 he was approached in Soweto by one Monde Hadebe who was a member of the Azanian Peoples Liberation Army (APLA). Hadebe asked the Applicant for money to purchase weapons with. The Applicant, who was a taxi owner and the proprietor of a tavern, informed Hadebe that he could not give him any money. Hadebe returned two weeks later and told Applicant that he must assist him in an operation to "repossess" money. The Applicant, Hadebe and one Chris Khumalo then went to Witbank and carried out a reconnaissance of the First National Bank.
About two weeks later, Hadebe telephoned the Applicant and told him to go and get a get-away car from one Lucky Makane. This he did. On 14 May 1991 the Applicant, Lucky Makane, Delan Mpoya (who was with Lucky Makane when the Applicant went to fetch the get-away car) and Joseph Malinga and one Elimo (who Hadebe told the Applicant to fetch) proceeded to Witbank in two motor vehicles. They all spent the night at the place of Solly Mopedi. The next morning they planned the robbery and Hadebe issued all of them except the Applicant and Mopedi with firearms.
They all then proceeded to the bank. The Applicant and Mopedi acted as drivers and after dropping off the others drove to a predetermined place some distance away from the bank where they were to wait for the others to come to them after the robbery.
While waiting the Applicant heard the sound of shots being fired. He waited some time for the others to return but they did not arrive. he then went to Solly's place where he met them.
He was informed by the others that "an accident" had happened at the bank and that there had been cross-fire and that they only managed to get away with approximately R28 000.00. The money was not divided amongst them and all of it was taken by Hadebe. The Applicant was the first of them to be arrested. He states that he was tortured by the police and made a statement in which he named most of his fellow perpetrators. He states further that he told the police that the money was divided between all the perpetrators as he wanted to protect the PAC and APLA.
The Applicant, Joseph Malinga, Lucky Makane, Chris Khumalo, Delan Mpoya and Solly Mopedi were all arrested. Save for Lucky Makane, who was found not guilty and discharged, they were all convicted and sentenced to long terms of imprisonment. Hadebe and Elimo were not arrested in respect of the incident.
As stated above, two people were killed during the robbery, both of whom were bank employees and two people were shot and injured. Four people were robbed of personal items and three other bank employees who had money belonging to the bank in their custody were robbed of cash in the amount of R28 244.71. Monde Hadebe is since deceased.
The Applicant was not a satisfactory witness. He was evasive and on a number of occasions only answered questions which had to be repeated. Contradictions exist within the testimony that he gave at the hearing and there are also serious contradictions between his testimony and a previously made statement by himself. The Applicant's explanation as to why he did not apply for amnesty in respect of two robberies for which he was convicted and sentenced which he also alleged were "repossession" operations was unimpressive and confirmed his untrustworthiness as a witness - (his explanation was that he did not apply for amnesty for these robberies as he was of the view that applying for amnesty for the Witbank robbery would cover all other robberies).
The Applicant did not state who of his co-perpetrators, other than Monde Hadebe, were APLA cadres. we are therefore not in a position to find that any of them were., We do know, however, that Joseph Malinga was not a member of APLA. He too applied for amnesty. His application was dealt with desperately for this application. In his application Malinga stated that he was a member of QIBLA.
In statements which were admitted as evidence at their trial, the Applicant, Malinga, Khumalo, Mpoya and Mopedi all stated that the money they robbed was shared. We are also of the view that it is improbable that an APLA repossession unit would include non-members of APLA such as the Applicant and Malinga in an operation.
The evidence given by Mr Thamsanqa Buthelezi to the effect that he was a member of APLA and knew Monde Hadebe to be an APLA cadre does not take the matter any further - he was not in a position to give any evidence relating to the Witbank incident.
After careful consideration of the evidence and documentation before us, we are not satisfied that the Applicant has made a full disclosure of all relevant facts. We are also not satisfied that the Applicant acted with a political objective when he committed the crimes.
The application for amnesty is therefore REFUSED.
DATED at CAPE TOWN this day of 2000
______
JUDGE S MILLER
______
JUDGE N J MOTATA
______
MR J B SIBANYONI AC/2000/081
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.
______
JACOB MPASA RAPHALO APPLICANT
(AM 5298/97)
______
DECISION
______
The Applicant is applying for amnesty in respect of offences set out in the indictment, Annexure "A" hereto, excluding charge 9, which have been summarised as follows under the heading:
THE STATE VERSUS MPASA JACOB RAPHOLO
A 30 year old Black male and a South African Citizen of Plot No. 3, Uitkyk, Bochum (hereafter referred to as the accused) is guilty of the following counts:
i. Murder;
ii. Attempted murder;
iii. Attempted murder;
iv. Attempted murder;
v. Attempted murder;
vi. Contravention of Section 32(1) read with Sections 1, 32(6), 32(), 39 and 40 of Act 0 of 1969;
vii. Contravention of Section 25(1) read with Sections 1, 39 and 40 of Act 70 of 1969;
viii. Contravention of Section 32(1) read with Sections 1, 32(6) 32(7), 39 and 40 of Act 75 of 1969;
ix. Robbery with aggravating circumstances, as defined in Section 1 of Act 51 of 1977;
x. Attempted theft;
xi. Attempted murder;
xii. Attempted murder;
xiii. Attempted robbery with aggravating circumstances as defined in Section 1 of Act 51 of 1977;
xiv. Attempted murder;
xv. Contravention of Section 2, read with Section 1, 39 and 40 of Act 75 of 1969;
xvi. Contravention of Section 36, read with Sections 1, 39 and 40 of Act 75 of 1969;
xvii Contravention of Section 32(1) read with Sections 1, 32(6), 32(7), 39 and 40 of Act 75 of 1969.
Alternatively, to charges 1 - 8 and 15 - 17 Terrorism in contravention of Section 54(1) read with Sections 1, 54(4), 54(6), 54(7), 64, 68, 69 and 73 of the Internal Security Act 74 of 1982.
The Applicant testified that he joined uMkhonto weSizwe in 1985, received training in Angola and Yugoslavia and returned to Angola in 1986.
In 1988 he received instructions from Chris Hani to infiltrate the Republic of South Africa through Botswana. He was appointed as commander of a unit of seven who crossed the border in the vicinity of Ellisras and based themselves near Beauty on the banks of the Palala River. On the morning of 8 August 1988 they were surprised by a tracking unit of the SAP and a battle ensued around about 16h00. One member of the Unit, James Kgwatlha as well as Constable N C Claasen of the SAP were killed whilst the Applicant and his deputy, Mike Makwena, as well as W J van Rooyen of the SAP were wounded. The Applicant and the other five members of the unit managed to escape during the following night and managed to cross the border back into Botswana. They had to abandon the weaponry referred to in charges 6 and 7 which they brought with them into the RSA. They were arrested in Botswana and deported to Zambia. This incident is dealt with under charges 1 to 7.
The Applicant and his unit infiltrated the RSA with the political objective to destabilise the then government.
The Applicant and a comrade, Willy Maditsi, again managed to infiltrate the RSA through Swaziland towards the end of 1989 to prepare underground bases for future attacks on the RSA government. The Applicant, who was born on the farm Uitkyk near Bochum in the Pietersburg district, decided to operate in that area. They managed to bring handgrenades into the country which were later found by the police and which formed the basis of charge 8.
The Applicant testified that he and Willy Maditsi separated and agreed to meet again at a certain venue near Groblersdal after December 1989. Before separating they discussed the problem of getting funds necessary for their own maintenance and the carrying out of operations. They agreed that they should attempt to obtain money by robbing government institutions. The Applicant didn't approve of robbing private institutions or ordinary civilians. Maditsi later reported to him that the robbed a filling station at Roedtan. The Applicant was not present and did not approve of this. Up to the present time he disassociates himself with this incident and maintains that he is not guilty of the offence reflected in charge 9 and doesn't apply for amnesty in this regard.
The Applicant accepts responsibility for the offences reflected in charges 10 to 13. The victims Gilau and Van Dyk were employees of the government serving in the Railway Department. The offences were related to an attempt to rob a motor vehicle belonging to the department which they needed for their operations. Gilau attended the hearing and after hearing the evidence, accepted the Applicant's apology and reasons for his involvement.
On 12 January 1990 the Applicant and Maditsi were in a park in Pietersburg. They intended to move into Shesego, a Black residential area after dark as they were afraid of being spotted by Askaris who operated in the township. Whilst sitting in the park they were arrested together with other persons for contravening the Separate Amenities Act. While being transported in the police van, they decided to escape. The Applicant, who had a Makarov pistol hidden in a food bag, decided to use the pistol to facilitate the escape. The police van stopped and the door was opened to allow further arrestees to enter. Applicant fired the pistol, wounded the policeman, Vorster, who was in charge and he and Maditsi managed to escape. They immediately separated and fled in different directions agreeing to meet as soon as possible at a safe house near Boyne in the district of Mankweng. It later transpired that Maditsi in fact reached the safe house on 13 January 1990 where he was shot. The Applicant reached the safe house on 15 January 1990 unaware of the fate of Maditsi. On going into the house, he found the police inside waiting for him. He was arrested during the ensuing struggle after being wounded in the leg.
The Committee is satisfied that the Applicant made a full disclosure of all relevant facts, that the offences were associated with a political objective and that all the requirements of the Act entitling the Applicant to amnesty were met.
The Committee is further of the opinion that the following persons should be considered to be declared victims in terms of Section 22 of Act 34 of 1995:
1. The next-of-kin of Nicolaas Cornelius Claasen who was killed on the farm first Hope in the district of Ellisras on 8 August 1988;
2. Willem Johannes Jacobus van Rooyen who was wounded, Lenya Alpheus Mashabela, Pieter du Plessis and Machiel Andries Stephanus Pretorius who survived the attempt to kill them on the above-mentioned occasion;
3. Otto Bousema van Dyk and Gert Cornelius Johannes Bilau, victims who were employees of the SARS at Cordelfos Railway Station on 9 January 1990;
4. Franci Phillip Vorster, a member of the SAP stationed at Pietersburg on 12 January 1990.
For the reasons mentioned above, amnesty is GRANTED to the Applicant in respect of all the offences listed in Annexure "A" hereto, excluding charge 9, in respect of which guilt is denied and no amnesty was sought.
SIGNED at CAPE TOWN this day of 2000
______
JUDGE S MILLER
______
ADV N SANDI
______
MR J B SIBANYONI AC/2000/082
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.
______
CRAIG MICHAEL WILLIAMSON 1ST APPLICANT
(AM 5181/97)
ROGER HOWARD LESLIE RAVEN 2ND APPLICANT
(AM 5465/97)
______
DECISION
______
The Applicants apply for amnesty in respect of offences which relate to:
1. The death of Ruth First on 17 August 1982 in Maputo.
2. The death of Jeanette Schoon and Katryn Schoon on 28 June 1984 in Angola.
It is common cause that Ruth First and the Schoons lost their lives as a result of the explosion of two bombs concealed in letters received by them. The bombs were manufactured in Pretoria by Applicant Raven and will be referred to as letter bombs. Both Applicants were members of the Security Police and the offences or delicts were ordered, advised, planned or directed with the Republic of South Africa while the explosions and resulting deaths occurred outside the borders of the Republic.
The Committee is aware of the judgements in Stopforth vs Minister of Justice and others, (case Number 316/97) and Veenendaal vs Minister of Justice and others (Case number 317/97) handed down by The Supreme Court of Appeal.
The court ruled:
"(35) In my opinion it is clear that Parliament could never have intended to confer on the Amnesty Committee the power to grant amnesty in respect of offences committed outside South Africa which are not triable in this country but in another country in which amnesty purportedly conferred by the Amnesty Committee would not be recognised. The power conferred on the Committee to grant amnesty in respect of offences committed outside South Africa can, in my view, only be exercised in respect of so-called extra territorial offences triable in this country. The crimes committed by the Appellants at Outjo do not belong to the latter category."
Members of the Amnesty Committee have already dealt with some of the aspects in the above judgements in the amnesty applications relating to the London Bomb incident to which this Committee would like to refer.
It must also be pointed out that whether our courts will have jurisdiction to adjudicate on acts, omissions or offences committed outside the RSA would depend on whether any act of Parliament endowed the courts with jurisdiction to hear those matters. Examples of exceptions to the general rule that our courts would not have jurisdiction to adjudicate on offences committed outside the RSA are for instance Section 37 of the Marriage Act 25 of 1961, as amended, which deals with offences committed outside the RSA:
"if any person contravenes any provision of this Act in any country outside the Union, the Minister of Justice shall determine which court in the Union shall try such person for the offence committed thereby and such court shall thereupon be competent so as to try such person and for all purposed incidental to or consequential on the trial of such person, the offence shall be deemed to have been committed within the area of jurisdiction of such court".
Jurisdiction was also conferred through legislation to hear offences committed in "the Republic or elsewhere" in Act 74 of 1982. See section 54(1), (2) and (5) as amended inter alia by Act 90 of 1996, relating to terrorism and sabotage, subject to authorisation by the director of prosecutions.
In the present applications all applicants were members of the South African Police who fell within the dictates of the Police Act of 1958 as amended inter alia by Act 68 of 1984. The amendment, inserting Section 10A provided that acts or offences committed outside the RSA by members of the Police Force shall be deemed to have been committed inside the republic for the purposes of Sections 9 and 10 of the Police Act.
As pointed out above, parliament conferred jurisdiction on SA courts to adjudicate on certain offences committed outside the borders of the RSA. Similarly, parliament empowered the Amnesty Committee to grant amnesty in respect of an act associated with a political objective, which means any act or omission which constitutes an offence or delict and which was advised, planned, directed, commanded, ordered or committed within or outside the Republic. Certainly, if parliament has the power to grant jurisdiction to one institution it follows that it has the power to grant it to another. The jurisdiction granted and the decisions which may result therefrom would not bind foreign countries. No Parliament can legislate for foreign countries and no court or amnesty committee could bind foreign countries. Internally, however, their decisions would be binding.
The Amnesty Committee is in terms of Act 34 of 1995 obliged to hear applications on offences advised, planned, directed, commanded, ordered or committed within or outside the Republic.
Whether their decisions would be recognised in other countries would be for those sovereign countries to decide.
As far as claims based on delict are concerned, there can be no doubt that our courts have jurisdiction. This was illustrated in the matter related to this very incident which is before us, in the case where the now late Mr Marius Schoon sued the Applicant, Williamson, for damages flowing from the incident in respect of which he is applying for amnesty.
The Committee has already stated in the London bomb decision, referred to above that there can, however, be no doubt that foreign countries won't be bound by any decisions of the Amnesty Committee or our courts unless their own domestic laws would make provision therefore.
In dealing with the present applications the Committee is also mindful of the provisions of its own founding Act, Act 34 of 1995 as amended.
It is stated in the preamble:
Act
"To provide for the investigation and the establishment of as complete a picture as possible of the nature causes and extent of gross violations of human rights committed during the period from 1 March 1960 to the cut-off date contemplated in the Constitution, within or outside the Republic, emanating from the conflicts of the past, and the fate or whereabouts of the victims of such violations; the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective committed in the course of the past during the said period; .... and to confer certain powers on, assign certain functions to and impose certain duties upon the Commission and those Committees; and to provide for matters connected therewith".
Section 20(2) states:
"In this act, unless the context otherwise indicates, "act associated with a political objective" means any act or omission which constitutes an offence or delict which, according to the criteria in subsection 3, is associated with a political objective, and which was advised, planned, directed, commanded, ordered or committed within or outside the Republic during the period 1 March 1960 to the cut-off date contemplated in the Constitution."
The duty of the Committee is to hear evidence and to decide on amnesty . Whether its decisions are recognised by our courts or foreign courts are questions to be decided by those institutions in accordance with the laws governing them.
The present applications were opposed on behalf of the Slovo and Schoon families. The Slovo family's interest lies in the fact that the late Ruth First was the wife of Joe Slovo. Their daughters played an active part at the hearing.
THE KILLING OF RUTH FIRST
Several witnesses testified about the background of Ruth First. She was a journalist until she was banned under the laws of the previous government prohibiting communism and then she trained to be a librarian. She met Joe Slovo in 1948. He at that time was studying law and soon thereafter started practising as an advocate. They were both members of the Communist Party which was banned in 1950. Gillian Slovo describes it as follows:
"Both Ruth and Joe were involved in starting it up again, this time underground, heading deeper into a secret world where excitement and danger were to run side by side. It was a cosy, inbred universe they occupied. To make sure their cover wasn't blown, membership was by invitation only. They learned conspiracy in those early years: no meeting was ever pre-advertised, or held in the same place twice running. Phone calls were short and cryptical, conversations often taking place not in the lounge but by a distant garden fence".
Ruth travelled widely. She visited Prague, Dubrovnik and Moscow for youth congresses and travelled to China, playing a very active part in the new organisation and promotion of the Communist Party and the liberation struggle at that stage.
Both Joe and Ruth were arrested on 5 December 1956 on a charge of treason. The charges were withdrawn in 1958. The ANC was banned in 1960 and a State of Emergency followed. Joe left the RSA in 1962 while Ruth and their children stayed behind but later followed Joe to the United Kingdom, where she remained politically active and played a very active role in the anti-apartheid movement.
She wrote various books and became a known academic. While in exile she remained a member of the Communist Party and of the ANC. She never left the Communist Party but later was very critical of the Soviet Union and the way it was organised.
She taught for three or four years at Durham University in the United Kingdom where she was highly thought of. They kept her on their staff even after she left the to teach in Mozambique at the Eduardo Monthlane University. She became Director of Research and Investigation at this university and devoted much of her time to building the department and concentrated on the relationship between Mozambican miners and the South African mines. Both Gillian Slovo, who visited Ruth in Mozambique, and Bridgett O'Laughlin, who taught with Ruth in the same department, stressed two aspects: According to them Ruth was very concerned that her academic work at the university should be seen as independent from the liberation movements and secondly, they both repeatedly emphasised that Ruth wouldn't have opened a letter addressed to Joe or one addressed to herself and Joe because that would interfere with Joe's privacy. In her book "Every Secret Thing, My Family, My Country" Gillian Slovo described her parents as secretive people -
"it had its origins long ago in South Africa when they had stood, with their comrades, on our rolling lawn and talked in code about what their next move should be"
Further examples of their way of life set out in the book are:
"On the third day" (after her arrival in Mozambique for Ruth's funeral) "I overheard someone telling my father about a meeting that had taken place in Cape Town. Just as I had when I was a child, I read between the lines and guessed that the meeting must have been somehow connected to Ruth. I waited for my father to tell me more but all he did was look once at and then beyond me and walk away, silent, shutting me out".
She wrote about the speeches at Ruth's funeral:
"They spoke instead of a cardboard heroine, a woman who had given her life to the struggle. I didn't want to hear of that Ruth. i wanted them to talk of the mother I had known. But if they had been able to, what would they have said? She had lived so many lives, there were so many Ruths. In the weeks that followed, when people spoke of her, they each conjured up a different woman"
"The daughter of two lifelong communists, Ruth hated dogma and empty displays of revolutionary fervour. As I stood watching I thought that she would have distanced herself from the mourners whose songs foretold of the impending victory for which she had given her life. And yet, maybe I was wrong; maybe Ruth, in her Mozambican incarnation, would have been amongst them. The last photo she sent me with members of her university department in a rally. Ruth is in the foreground. On top of her frizzed-out hair perches an incongruous miners tin hat. She is carrying a flag and smiling proudly - a woman who has finally joined in."
Bridgett O'Laughlin inter alia testified that Joe and Ruth did not discuss their secrets, their work, with her:
"No, they did not, they were very careful. Of course long-term political issues, things like that we talked about, we discussed politics and debates but they were very careful not to discuss things in front of me and frankly, I was also very careful not to know".
On being asked "why was that?" she responded:
"Because it seemed to them dangerous to involve people in work or what was going on and it seemed to me quite important not to know".
Ruth, however, was not as concerned as Joe was about personal security. She led a normal life in Mozambique while Joe was very security conscious. Joe considered himself to be target for assassination. Ruth didn't consider herself to be a target in the same way but she knew there was a risk.
O'Laughlin further testified that Ruth was a South African connected with the struggle for liberation - that was part of her identity - but it was very important to her that her academic work should be the focus and she made sure that the people at the university understood that clearly. She was aware that Ruth was a member of the ANC and attended meetings of the ANC's Women League as well as branch meetings. She stated that she is not saying that Ruth didn't do political work to further the aims of the ANC and SACP. She was a political person who believed in the liberation of RSA and was against apartheid. It was a very important part of her. Ruth agreed with the decision of the ANC to wage an armed struggle, a people's war and was supportive of that, but for her it was important that the armed struggle should be subordinate to the political struggle.
All the witnesses agreed that Ruth's death was a loss to the ANC but also a loss to South Africa as a whole. She was well-known world wide and fought at the forefront of the liberation struggle. Tribute was paid to her by various leaders of the ANC and SACP. She was considered as a devastatingly effective critic of apartheid and as a brilliant and seasoned revolutionary and respected throughout the world as an anti-apartheid activist. Although in an article which appeared in the "African Communist" written by comrade Mzala, it was stated that she served in a unit of the ANC, this was not verified. It also wasn't clear what the functions of the unit might have been.
It was against this background that Ruth First was killed during August 1982. This was in some way expected by Gillian. She wrote about her reaction on receiving a message to phone her sister:
"It had come, that moment I'd been expecting throughout my life. One of my parents was dead. Not naturally: one of them had been killed. I knew that. What I didn't know was which one."
She wrote about her meeting with her father, Joe, after flying to Mozambique and what he told her:
"They targeted her because of who she was," letting slip the guilt which must have been consuming him, the feat that 'they' had killed her because they had not been able to get him. "It was the work she was doing," he continued. "It was dangerous to them".
We quote from the book written by Gillian Slovo because not only was it handed in as an exhibit at the hearing but also because she, in giving oral evidence, under oath confirmed that she believed the contents to be correct.
The Committee will now deal with the evidence of the Applicants.
Williamson testified that at the time his direct superior officer was Brigadier Piet Goosen. He stated that from the 1970;s onwards it became clear to him that South Africa was getting more and more involved in a revolutionary war. At the time he had the rank of major. During January 1982 he received orders from Goosen to prepare and plan an attack on the London headquarters of the ANC. This incident has been dealt with in a separate decision. According to the Applicants it served as an example that cross border attacks were authorised by the then Minister of Police who on occasions directly consulted with Goosen. He at no stage doubted that Goosen had authority to issue orders to him as a subordinate in the command structure to carry out a specified task or operation. According to him he received an official police envelope containing a smaller envelope and with instruction to go to Goosen. On his arrival Goosen asked him whether Raven could replace the documents of the smaller envelope which was an intercepted letter with an explosive device. There was a short discussion about the weight and type of device and he undertook to see Raven about it and to report back. He believes that the name Slovo or Slovos were mentioned at the time as the person(s) to whom the intercepted letter was addressed and on peeping into the bigger envelope and moving the papers in the big envelope by using a pen, he could see that the small envelope was on its way to the Eduardo Monthlane University in Maputo. According to him he couldn't make out the name of the addressee but accepted it was addressed to one or both of the Slovo's.
After a few days Raven reported back that he had carried out the instruction and on looking in the envelope Williamson asked whether it was in fact a bomb that could kill both of them if it would now explode. Raven confirmed this and he requested him to take the envelope to Brigadier Goosen.
Some time later it was reported at a meeting that Ruth First was killed in a bomb explosion at the university in Maputo. Goosen looked at Williamson, nodded his head but didn't say anything. He further testified that in his opinion the death of either of the Slovo's, Joe or Ruth, would have had a destabilising effect on the liberation movements and would disrupt their planning. The fact that the killing took place in Mozambique would also have an influence on neighbouring countries harbouring the revolutionary forces. Furthermore the ANC would have to use some of their soldiers to protect their personnel and that would affect the numbers available to infiltrate the RSA to commit attacks. It would also instil fear for possible pre-emptive or hot pursuit attacks. He said that it was accepted that the security forces had been involved in the killing and they should be ready for retaliation attacks. he extensively quoted from the Annual Intelligence Review 1982 and in particular, chapter 6 thereof dealing with the Internal Threat. He concluded that his document reflects the attitude at the time and lends justification to the fact that he felt that the act was justified and that he was not surprised by the instruction he received to have a bomb prepared as it formed part of the overall political and military strategy against the ANC at the time. He further testified that Ruth was known and referred to in Security circles as Ruth Slovo. Her photo also appeared under that name in the terrorist album.
As stated above, Williamson testified that he asked Raven to take the envelopes back to Goosen. Raven on the other hand, said he left them with Williamson to take it to Goosen. The evidence of both Williamson and Raven about the name or names and address on the intercepted envelope was not convincing and in some aspects contradictory. Raven explained that he avoided handling the intercepted envelope for fear of leaving fingerprints on it. That might have been the reason for not taking the intercepted envelope out of the bigger envelope and read the name of the addressee. He also explained that he concluded that his superiors didn't consider him to be one of those who "need to know" who the targeted victim might be because if they wanted him to know they would have told him. He was not at all involved in the choosing of targets and he as well as Williamson testified that his superiors never informed him who the targets were. They both accepted that the Improvised Explosive Device (IED) or letter bomb was intended to be used "against the enemy". The both regarded both Slovo's as part of the enemy and the killing of either of them would have been according to Williamson in accordance with the strategy of the Security Police at the time.
The have no knowledge what happened to the IED after it was handed to Goosen. The only evidence relating to this IED's arrival i Maputo came from O'Laughlin. She testified that Ruth was told by one Aquino, a colleague at the university that there was mail for her at the secretary's office. Ruth went to fetch it and on her return opened the letter in their presence and the explosion followed in which she was killed. Nobody paid special attention to the letter or saw the name of the addressee but they were convinced that Ruth wouldn't have opened a letter addressed to Joe Slovo or even to herself and Joe. This might have been so but the fact remains that the evidence was that Ruth and Joe had secrets that they wouldn't discuss with even their daughters. Even if we accept that Ruth didn't want mail connected with politics to be addressed to her on the university address, it remains a fact that an addressee has no control over the address written by a sender on an envelope. No one could shed any light on the question whether the IED arrived at the university or in the secretary's office by post or whether it was delivered by hand. Goosen, the person who sent the letter, is deceased.
Raven further testified that he believed the IED would be sent to a high-ranking or well publicised target because it would have been a futile exercise to send it to a non-entity. To have the effect of demoralising the enemy, it had to be a well known person. It was for the powers that be to choose the target. He acted on instructions to manufacture an improvised explosive and acted accordingly. Although Raven stated that he cannot be sure, it happened more than 15 years ago - his recollection is that he handed the envelopes to Williamson and not to Goosen.
The same Applicants also apply for amnesty in respect of a similar bomb attack two years later, on 28 June 1984, when Jeanette Schoon and her daughter Kathryn were killed. It is convenient to deal with the facts in that incident before dealing with the legal issues.
THE KILLING OF THE SCHOONS
Before dealing with the facts it may be appropriate to deal with the background of applicant Williamson.
BACKGROUND OF CRAIG WILLIAMSON
Williamson was born in 1949 and joined the South African Police in 1968. In 1971 he became a member of the Security Police. During 1971 it was decided that he should infiltrate the left-wing student organisations - NUSAS in particular who were regarded as dangerous to the State security. Up to then he was a member of the Uniform branch, but on passing his exams and being promoted to a sergeant, he came to the attention of the Security branch. He pretended to resign from the Police and registered as a student at Wits University during 1972 where he was soon accepted as a left- wing radical. He was elected to the Students Representative Council in 1973.
His specific mandate at the university was to investigate the ANC and the South African Communist Party. During 1971 he met Colonel Johan Coetzee to whom he later used to report. During 1973 he was elected to the executive of the SRC. He reported about the political activities of the SRC and some of the lecturers. He was sent to the University to report on anything that could possibly be related to the South African Communist party and the ANC and what he described as "their attempts to influence, manipulate and recruit students to their cause". He managed to deceive everyone that he was a bona fide student and was during 1974 and 1975 elected to high office in NUSAS. As a spy he managed to infiltrate the ANC and SACP and passed information to the Security Force. During 1975, 1976 he was involved in getting people out of the country and it boosted his credibility. he agreed to the proposition put to him in cross- examination and he managed to deceive highly intelligent people. During this period he also met Jeanette Curtis who later married Marius Schoon. She was also a member of the National Executive of NUSAS and involved in NUSWEL, which was the labour arm of NUSAS and lent assistance to people to organise themselves into trade unions.
Williamson later obtained a full time job with NUSAS and used to travel around campuses organising for NUSAS.
During the period when he was vice-president he travelled overseas to obtain funds for the organisation. He visited numerous donors including the International University Exchange Fund (IUEF) who later employed him as a deputy director. With this job as cover he managed to direct funds away from students or students bodies supporting the ANC and to obtain money to buy a farm named Daisy, which was used for lectures and training of supporters of the government. To keep his cover he also arranged for bursaries for black students.
Ultimately, according to him, his cover was blown because a fellow security policeman who knew him since his student days at Wits, defected and threatened to expose him. The suggestion was made that he come into the open after consultation with General Coetzee because he realised that the Schoons and Mr Maharaj had become convinced that he was a government agent and would have exposed him in any event shortly afterwards. He denied that he was aware of this or that it played any role in his decision - this is to a certain extent corroborated by the fact that there were attempts to keep his cover and to use him in a different capacity in Europe. This didn't materialise because Williamson and General Coetzee could not manage to obtain the co-operation of Mr Lars Gunnar Ericsson, the director of the IUEF, after he became aware of Williamson's double role.
After breaking his cover, Williamson, who was then dubbed "The Master Spy" was seconded to Security Police Headquarters where he, with the rank of major, served under the direct command of Colonel Goosen, who according to the evidence, initiated and ordered the attacks on the Schoons and Ruth First.
THE SCHOONS
Marius Schoon married Jeanette during June 1977. Marius at that stage had served a 12 years imprisonment sentence for sabotage and was still under house arrest and stringent banning orders while Jeanette had banning orders for her trade union activities. She had also been deputy chairperson of NUSAS, a student organisation frowned upon by the government. They were married the afternoon before they left illegally to o to Botswana into exile. They went to Botswana under the instructions of the ANC and registered as refugees. Marius started teaching at a secondary school in Botswana in January 1978 and Jeanette obtained a post at the same school round about April 1979. They continued teaching there until July 1981 when they started working for a British organisation as field officers.
At that stage there was a chief representative of the ANC in Botswana, an ANC residence where a number of ANC members were staying as well as ANC comrades staying in various parts of Botswana. Marius was a member of the Communist Party and both Marius and Jeanette regarded themselves as ANC members. Marius testified that he wasn't sure whether Jeanette was approached to join the Communist Party. Marius was a member of the Political Committee which was linked to the Senior organ of the ANC in Botswana. According to him he was never a member of the senior organ and was mistakenly mentioned as a member of the Senior Organ in the ANC submission to the TRC. As a member of the Political Committee he and Jeanette were tasked with the mobilisation of people in the RSA. During the hearing everyone referred to Jeanette as Jenny and the Committee will do the same.
Their task was to mobilise people in the PWV area and to a limited extent in Northern Province and North West Province. They had to recruit comrades who would send regular reports to them about strategic happenings in the areas where they had influence in their networks. Jenny also had the task to propagate the ideas of the ANC to the South African Congress of Trade Unions and to unite Trade Unions. It was common cause that the Trade Unions were seen as an ally in the struggle against the then government. It is obvious from the evidence of Marius that the ANC operated on a very clandestine basis and that even he did not know who the members of the Senior Organ were, he didn't even know that Dan Hlume was heading the Internal Political Committee (IPC) in Botswana but knew that Henry Mahoti held a very senior position in the IPC. That may account for the mistakes in the ANC's own submission to the TRC about membership of the Senior Organ. It was argued that the same would be applicable to the Security Police if they would have wrongly assessed the role Marius and Jenny played in Botswana and later in Lubango. On his own evidence Marius regarded himself and Jenny to be important members of the liberation forces who did whatever they could to enhance the position of the ANC. He conceded that whilst they were in Botswana they could have been considered to be legitimate targets from the viewpoint of the Security Police. Mr Maharaj who testified on their behalf confirmed that they were regarded as important members of the ANC doing important and excellent work on behalf of the party. Marius further testified that he suspected that there were two attempts to assassinate him while he was in Botswana. On one occasion they found a firearm in the luggage of a person who they suspected to be an agent sent from the RSA. On another occasion he saw an article which could have been a disguised explosive next to the front wheel of his car. He went to call for assistance to investigate this article but on his return it had vanished. The suspected person who had a gun, was apprehended by the organisation and he does not know what happened to him thereafter.
It was confirmed by Dirk Coetzee and Colonel Schoon in their evidence at this hearing that there was at least one, probably two attempts to assassinate Marius whom they regarded as an important member of the ANC and SACP who were at that stage the declared enemies of the government of the RSA.
On being asked whether he had reason to believe that Williamson thought that his exposure was partly due to his and Jenny's efforts, he answered:
"Mr Chairperson, as I recall Mr Williamson's evidence, what he is putting before the Commission, is that his exposure and his being withdrawn from working in Geneva, was due to the defection of another South African agent."
"I think that that played a part Sir, however I also think that Mr Williamson was astute enough to know mid 1979 if not earlier, that there were considerable suspicions about him within the ANC. I also think that Mr Williamson, and again I say think, not know Sir, that Mr Williamson is astute enough and a will enough trained Intelligence Officer, to have been aware that Jenny and I were playing, I think, some considerable part in building the pyramid of suspicion that the NEC in Lusaka was now aware of".
The fact is that Williamson was exposed at the end of 1979, beginning of 1980, before the ANC took any steps to expose him. Williamson in his evidence denied that he had any knowledge of a threatening exposure by the ANC. On the evidence it is clear that the ANC kept whatever suspicions they might have had very secret, probably in order not to alert Williamson. Whether the role played by the Schoon's gathering evidence against Williamson was a factor in the decision to send a letter bomb to the Schoons cannot be positively decided on the evidence. Even the suggestion that Williamson knew of the involvement of the Schoons in his possible exposure (which is denied by him) rests on speculation.
Marius further testified that he met the Applicant Williamson while he was in Botswana. His wife, Jenny, probably knew him from university where he was known as a student activist. Williamson who was a spy of the RSA government, a fact that became known after his exposure early in 1980, on occasion visited them in Botswana and stayed with them. According to the evidence the Schoons as well as Mr Maharaj became suspicious about Williamson's role and were seriously investigating his movements at the stage when he was exposed through information supplied by a co-undercover agent who defected.
Marius further testified that after Williamson's exposure in the beginning of 1980 they continued with their work in support of the ANC. In 1981 both Schoons started working as joint field officers for an organisation called International Voluntary Service. About May 1983 he was informed by the secretary that the organisation had been informed by the Overseas Development Association, which was the British government wing, that they regarded the presence of the Schoons in the IVS programme in Botswana as endangering the lives of other British volunteers. The termination of their services was then negotiated. During June 1983 the British High Commissioner in Botswana informed the Schoons personally that he had information that there was conspiracy to kill Marius and he advised them to leave the country immediately. This was confirmed by Brigadier Hersfield, the head of the Special Branch in Botswana. They were told that if they did not leave they would be declared prohibited immigrants within a fortnight. They reported it to the ANC who reported it to Lusaka headquarters. The ANC instructed them to redeploy to Lusaka. Jenny and the children drove to Lusaka whilst Marius left by air from Francistown for safety reasons and not from Gaberone as could be expected.
In Lusaka they lived in a house with Mahoti, Secretary of Education for the ANC at the time and the person who previously held a very senior position in the Internal Political Committee in Botswana. They still felt threatened and were periodically told to vacate the place where they were sleeping and to go somewhere else for the night because a South African raid was expected. Shortly thereafter the ANC indicated that they received a request from the Angolan government to supply English teachers to tertiary institutions in Angola. After delays they left for Angola in December 1983 to go and teach at Lubango.
There was an exceptionally strong military presence at Lubango. It was previously during the first invasion of Angola by the South African troops, the headquarters of the SADF. At that stage (December 1983) the SADF again invaded Angola. There were Cuban vehicles and troops in the streets all the time and the airport in Lubango was bombed by the SADF on several occasions. There was also a strong presence of SWAPO with whom the SADF at the time were engaged in war. In the town of Lubango there was hooting almost every night and Cuban helicopters would fly day and night. There were only two other South Africans there at the time, both teaching a the same university. On request of the ANC either Marius or Jenny from about the end of February 1984 would spend a few days once a month in Luanda at the ANC's head office to assist in the planning of the ANC's development projects around Luanda involving ANC members. It was during one of these visits by Marius to Luanda that Jenny and their daughter Katryn were killed by a letter bomb. The son, Fritz, was severely affected by this killing which he witnessed and it haunted him for several years to come.
Williamson and to a lesser extent Raven, testified about the events leading up to the killing of Jeanette and Katryn.
As already indicated both Marius and Jeanette fled the country while they were serving banning orders imposed on them because of their opposition to the apartheid government. They settled in Botswana where they actively promoted the ANC's cause. Whilst there, attempts were made to kill them and that caused them to move to Lusaka and later to be redeployed at Lubango as lecturers.
Williamson testified that he was given an instruction early in 1984 to go to the office of Brigadier Piet Goosen. He had an intercepted communication believed to be from the ANC in Botswana addressed to Marius and Jeanette Schoon in Lubango. Goosen asked him to request Raven to prepare a letter bomb. As he knew the Schoons he had more interest in the envelope than he had in the Slovo case. He ordered Raven to prepare the bomb. Raven came back to him after a day or two and reported that he had to take it to Goosen. He testified that knowing that an attack was made on people he knew caused him great difficulty but in the context of the time they were enemies of the Security Forces. The objective was the same as in the Slovo case. They wanted to damage and weaken the ANC/Communist party Alliance through killing or injuring key personnel and to disrupt their operations. They wanted to psychologically destabilise them, sow fear and confusion in their ranks, particularly so by carrying out an attack in a so-called denied area where the ANC wouldn't expect them to be able to do so. The Schoons were regarded as long term opponents, with a relatively high political profile. It is also common cause that they were targeted in Botswana while they were working as teachers and at the same being involved in furthering the revolution against the South African government. They left Botswana when they became aware of the fact that they were targeted, went to Lusaka whereupon they were redeployed at Lubango in a military zone where they were surrounded by Cuban and Angolese troops. It was argued that they refrained from political involvement and were only doing academic work there.
The Applicants both testified that after handing the device to Goosen they did not play any further role in the sending of the bomb. Williamson said it took such a long time, months before they heard of the explosion, that he thought something had gone wrong and that the letter bomb didn't reach the Schoons.
The evidence about the actual explosion when Jenny presumably opened the letter in the absence of Marius but in the nearby presence of Kathryn which resulted in her own death and that of Katryn, has already been mentioned.
The hearing lasted over several weeks, the oral evidence run into thousands pages and exhibits of several hundreds of pages were filed. The above obviously is only a brief summary of the evidence.
The Committee had to consider whether the applications met the requirements of Act 34 of 1995 and more particular Section 20 of the aforesaid Act.
The Committee is satisfied that the applications were formally in order as required by Section 20(1)(a). Section 20(1)(b) states that the act omission or offence should be an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of sub-sections (2) and (2).
Sub-section (2) requires inter alia the act in respect of which amnesty is sought to be an offence or delict.
The Committee is satisfied that the killings of Ruth First and of Jeanette Katryn Schoon were offences committed in the course of the conflicts of the past.
The Applicants were members of the Security Branch of the South African Police. As such they were employees of the State and qualify to be applicants in terms of sections 20(2)(b) and (f). They acted with the course and scope of their authority or duties and within the scope of their express or implied authority. The offences were directed against publicly known political organisations or liberation movements, the ANC and the SACP and/or against members or supporters of those organisations and was committed bona fide with the object of countering or resisting the struggle.
This section required the act to be directed against a political organisation or against any members or supporters of such organisation. Obviously Katryn Schoon at the age of six couldn't have been a member or supporter of a political party. On the evidence the attack was not directed against her. She was killed in what has often in amnesty hearings been referred by applicants on either side of the political struggle as the cross fire. It is obvious that once a weapon such as a letter bomb or a limpet mine or any kind of bomb is used, it must be foreseen that innocent civilians could also be killed. This happened in many cases and was also the tragic result in this case.
Williamson said that he didn't expect the Schoon children, the six year old Katryn and the 3 year old Fritz, to be with their parents in a military zone. He thought they were left in London with Jeanette's sister because the Security Police were aware that she visited her sister shortly after leaving Botswana and before, or at the time they were transferred to Lubango. This might have been so but it wouldn't exclude the possibility of other children or innocent bystanders being killed when an explosive device is chosen as weapon against a political enemy moving around in a society including civilians.
The Schoons as well as Ruth First were at the time of their death involved in lecturing at universities. It is, however, clear on the evidence that they were still involved in the struggle and hadn't bade farewell to politics.
The Schoons, according to Marius, were loyal supporters who at that stage would still have carried out any order given to them by their superiors. They knew they were targeted to be killed because of their activities and that was indeed the reason for them moving to Lubango where they were employed in education in a similar position which they occupied in Botswana while they were engaged in the struggle against the then government.
The Committee also had to consider the requirements of Section 20(3). It was argued on behalf of the victims that the motive of Williamson was not political but that he acted out of personal malice. There is no evidence that he chose the victims or that he ore any personal malice against Ruth First. As far as the Schoons are concerned he denies that he had knowledge that they regarded him with suspicion and sent in reports to Mr Maharaj. According to the evidence the investigation from ANC was very clandestine so as not to alert Williamson. It seems as though they have succeeded in not doing so. It is not disputed that Williamson's cover was broken as a result of the defection of a Security Police member who had documentary proof of Williamson's real activities. The Committee concludes that the motive was associated with a political objective to at least disadvantage and destabilise their political opponents in the course of the struggle.
The offences were committed in the context of the political struggle. Death of any human always a grave factor in all the unfortunate political killings. The fact that an innocent child was killed added to that and had to be taken into consideration.
The objective of the acts was considered and the Committee is satisfied that the offences were directed at political opponents.
Both Williamson and Raven testified that they acted under orders of Goosen. There is no evidence to contradict this. The offences were meant to destabilise, demoralise and disadvantage the liberation forces. It might not have demoralised them, in fact it seems as though it had the opposite effect, but the deaths were severe blows to the ANC and SACP and shocked many people. According to the evidence that is what they wanted to achieve. The acts were in the result not disproportionate to their objectives.
Section 20(c) requires that an applicant should make a full disclosure of all relevant facts. The Committee is satisfied that all relevant facts have been disclosed but had reservations about one aspect. The applicants admitted that they played active roles in the killings of all the deceased and accepted responsibility for their deaths. They described the manner in which the devices were made and what the intention was. They explained cross-border operations and why they believed the offences were authorised by their superiors. They testified about political utterances to pursue so- called terrorists to wherever they may seek refuge.
The aspect that the Committee had reservations about is their knowledge of the addressees on the envelope. Williamson testified that he knew the second IED was addressed to Marius and Jeanette Schoon. Raven said he knew the IED's were destined to be sent to high-profile political opponents. He as technician and expert in explosives. Identifying targets and knowing about the political activities of opponents didn't fall with his domain.
Williamson said he also knew that the first IED would be sent to Slovo. Goosen told him so. It could have been to Joe Slovo care of Ruth First or to Joe Slovo and Ruth First or to Ruth First. The Security Police always referred to her as Ruth Slovo. It was put to him that there will, if need be, evidence from Pallo Jordan, Sue Rapkin and Bridgett O'Laughlin who were present when the envelope was opened, that the envelope was addressed to Ruth First. O'Laughlin did testify and said she never saw a name on the envelope. The other two weren't called.
There were other contradictions in the evidence of Williamson and Raven. This was to be expected after more than 15 years. The material facts were, however, revealed and the Committee is satisfied that the applicants as far as they could remember the details made a full disclosure of the relevant facts.
Amnesty is there GRANTED to both Applicants in respect of the following offences:
1. The murder of Ruth First in Maputo on 17 August 1984.
2. Any other offence directly linked to the above offence and directly connected to the evidence including the possession of explosives and transporting of an Improvised Explosive Device and the interception of mail.
3. the conspiracy to murder Joe Slovo and all offences directly linked thereto and attempts flowing therefrom.
4. The murder of Jeanette and Katryn Schoon at Lubango on 28 June 1984.
5. The conspiracy to murder Marius Schoon and all offences directly linked thereto and attempts flowing therefrom.
6. All other offences directly linked to the murder of the Schoons and directly connected to the evidence including the possession of explosives and transporting of an Improvised Explosive Device and the interception of mail.
The Committee is of the opinion that the next-of-kin of Ruth First and Jeanette Schoon should be declared victims in terms of Section 22 of Act 34 of 1995.
SIGNED at CAPE TOWN this day of 2000
______
JUDGE A WILSON
______
C DE JAGER A.J.
______
MR J B SIBANYONI AC/2000/083
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.
______
DIRK JOHANNES COETZEE 1ST APPLICANT
(AM 0063/97)
WILLEM FREDERICK SCHOON 2ND APPLICANT
(AM 4396/96)
IZAK DANIEL BOSCH 3RD APPLICANT
(AM 3765/96)
JOHN LOUIS McPHERSON 4TH APPLICANT
______
DECISION
______
These decisions will deal with the following incidents:
1. Attempted murder of Marius Schoon prior to 28 June 1984;
2. Attempted murder of Joe Slovo prior to 17 August 1982;
3. Lusaka Bomb.
RE: APPLICANT BOSCH
The Committee will deal with the application of Bosch (3765/96). He stated in his application that he was once asked by Jerry Raven to glue a number of pages together. According to his memory, this happened during 1983. After hearing of the death of Jeanette Schoon he suspected that these papers might have been used to prepare the bomb that killed Jeanette Schoon. Raven in his evidence before the Committee denied that he made use of documents glued together by Bosch in preparing the bomb to kill the Schoons. Bosch, on advice of his legal representative, removed his application from the roll as it could not be established that the papers glued together were intended to be used to commit an offence. Raven testified that it might have been for the purpose of experiments, but that Bosch was definitely not involved in the preparation of any bomb intended to be used to kill anybody. RE: APPLICANT COETZEE
Coetzee's application in respect of a conspiracy to murder Marius Schoon was heard by a different panel of the amnesty Committee. A decision will be given by that panel.
RE: APPLICANT WILLEM FREDERICK SCHOON
The Applicant applies for amnesty in respect of any offence or delict relating to a conspiracy or attempt to kill Marius Schoon in Botswana during 1980.
The Applicant stated that the acted as a result of a suggestion by Dirk Coetzee and supplied Coetzee with a revolver and ammunition. This was to be given to a person who would infiltrate Botswana and kill Schoon. According to him Coetzee later reported that the attempt failed because the person was confronted by the ANC in Botswana, attacked and his firearm taken from him. The attempt to murder failed.
He further testified about Marius Schoon's background and the political motivated reasons why he agreed to and co- operated in an attempt to kill Schoon. It is true that his evidence differs from Dirk Coetzee's evidence given before this Committee in certain aspects. These differences belong to the periphery of the incident. They both admitted that they were involved in an attempt to kill Marius Schoon almost 20 years ago. The operation was a failure and it is acceptable that they would differ about details. It is however common cause between them that they were involved in the planning of such an operation.
The Committee is satisfied on the evidence that this conspiracy was associated with a political objective and that the Applicant made a full disclosure of the relevant facts as he at this stage recollects them.
Amnesty is therefore GRANTED to the applicant W.F. Schoon in respect of any offence or delict relating to a conspiracy and/or attempt to kill Marius Schoon in Botswana during 1980.
RE: APPLICANT McPHERSON
The Applicant testified that he and a certain Captain Pretorius, a co-member of the Security Police approached General Johan Coetzee. Pretorius told them that he had an Indian source called Ali who had direct access to the ANC offices in Lusaka. He could take a bomb built into a briefcase into the building and leave it in the offices in a position where it would possibly injure Joe Slovo. According to Applicant, Coetzee gave them permission to proceed with the project. Coetzee testified that he cannot recall the incident but it is probable that he would have approved of such an operation if he had been approached.
The bomb was thereafter prepared and built into a briefcase. It is common cause that the bomb was placed at the gate of the ANC offices at Lusaka by the operative Ali. It exploded and caused minimal damage. No deaths or injuries were reported. They thereafter paid a reward of R15 000.00 to the operative.
The Committee is satisfied that the offence was associated with a political objective and was either authorised or condoned by the Applicant's superiors. The intention was that the bomb should be left in or near the office occupied by Joe Slovo and the explosion would possibly result in him being injured or killed. Slovo was a political opponent and was one of the major targets of the Security Forces.
The Committee is satisfied that the requirements of the Act have been met and amnesty is GRANTED in respect of:
1. all offences relating to the planting of a bomb at or near the ANC offices in Lusaka during June 1985 with the intention to injure or kill members of the ANC including Joe Slovo;
2. malicious damage of property at Lusaka during June 1985; 3. illegal possession of explosives; and
4. all other offences and delicts in causal relationship to the aforementioned acts.
These applications were heard simultaneously with the applications relating to the London Bomb, the murders of Jeanette and Kathryn Schoon and of Ruth First. The prevailing political background was full dealt with in those applications and the evidence led in those cases in this regard was also applicable to these applications.
SIGNED at CAPE TOWN this day of 2000
______
JUDGE A WILSON
______
C DE JAGER A.J.
______
MR J B SIBANYONI AC/2000/084
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.
______
EUGENE ALEXANDER DE KOCK 1ST APPLICANT
(AM 0066/96)
DAVID JACOBUS BRITS 2ND APPLICANT
(AM 3745/96)
KOBUS KLOPPER 3RD APPLICANT
(AM 3762/96)
DANIEL LIONEL SNYMAN 4TH APPLICANT
(AM 3766/96)
NICHOLAAS JOHANNES VERMEULEN 5TH APPLICANT
(AM 4358/96)
LEON WILLIAM JOHN FLORES 6TH APPLICANT
(AM 4361/96)
______
DECISION
______
The six Applicants are applying for amnesty in respect of all acts, omissions, delicts or offences committed by them, pertaining to the abduction and murder of Johannes Mabotha and the destruction of his body with explosives at Penge Mine, near Burgersfort (Weltevreden) on 4th October 1989, and any other offence or delict flowing directly from or linked to the said abduction and murder, including defeating the ends of justice or any cover up of the offences. Amnesty has already been granted to W W Mentz (AM 2775/96 - AC/99/0033) in respect of this incident.
Although Jan Daniel Potgieter was listed as an Applicant in this hearing, it transpired that this was an error and Mr Rossouw, who appeared on behalf of Potgieter, clarified Potgieter's position as that of an implicated person.
The general background about Vlakplaas as an operational unit of the Security Police and the role of askaris as well as their political motivation has been covered previously. For this incident, it may be convenient to start by referring generally to the background about Penge Mine.
This is an old, unused asbestos mine situated at Weltevreden near Burgersfort in the Mpumalanga Province. From time to time it was used by Vlakplaas, with the knowledge and consent of its owners, to conduct training exercises for askaris and Vlakplaas members.
These training exercises included fitness training, training in the use of explosive devices such as hand grenades, land mines and other explosives and in the use of firearms. The explosives and weapons used were from many sources including South Africa, Europe (NATO) and Eastern Bloc countries. When firearms or explosives were to be used the mine employees resident in the area were notified to avoid any unnecessary reaction or enquiries from them.
De Kock gave evidence about the details of the circumstances surround the abduction and murder of Mabotha. The other five Applicants gave evidence about the role each of them played in the incident. Potgieter, the implicated person, filed an affidavit giving his version of the circumstances surrounding the killing of Mabotha. Such version differed on material respects with the evidence of De Kock and this necessitated the Committee calling Potgieter to testify and be subjected to cross-examination. His evidence is dealt with below.
In testifying before the Committee, De Kock gave general evidence about the problems experienced with the askaris, which included the fact that they would arrive late for duties or fail to report on some days. They gave a variety of excuses for that.
Mabotha was a member of uMkhonto weSizwe (MK) under the ANC and underwent military training abroad. After his infiltration into South Africa, he was arrested, interrogated and tortured. He chose to co-operate with the Security Police and was sent to Vlakplaas to work there as an askari. He later disappeared and never reported for duty again.
Thereafter, De Kock received a telephone call from the Soweto Security Branch that Mabotha had once again been arrested and was being held at Marble Hall. he had been involved in ANC activities again. After discussing the matter with Brigadier Schoon and General Basie Smit, De Kock and Bellingan departed from Vlakplaas and went to Marble Hall.
On the following morning, De Kock and Bellingan met members of the Soweto Security Branch at Marble Hall Police Station; Mabotha was brought to them and accompanied by Colonel Grobler. They all went to a house in a rural area (farm). There Mabotha was interrogated, assaulted, tortured, among other means a bag and a rubber band was used to suffocate him. His clothes were taken off and he was hung upside down. ice was put in his anus. Mabotha sustained injuries as a result. De Kock participated by assisting in hanging him upside down and suffocating him. De Kock denied that it was Bellingan who placed ice blocks in Mabotha's anus. He stated that he and Bellingan left when the ice blocks were used. That was the first time that De Kock saw such a method of torture and he did not believe it would assist in extracting information. The interrogation started at about 09h00 or 10h00 and lasted until 15h00 to 16h00.
De Kock, as commanding officer of Vlakplaas wanted to know what information Mabotha would have leaked out about its existence and about the identity of its officers and men.
The police believed that Mabotha absconded and joined the Mandela Football Club under the control of Winnie Mandela and that he was involved in the killing of police. When arrested at Marble Hall, Mabotha had been in telephonic communication with Winnie Mandela and he had in his possession her telephone number and a message transcribed in his handwriting which was a report to the Star Newspaper that Stompie Sepei was not dead but was in Botswana, running away from the South African Police. (Mabotha was supposed to leave the country and go to Botswana to give such a report. He gave the report from Groblersdal).
De Kock testified that he had no further interest or use for Mabotha. He had left Vlakplaas for about two weeks to a month and to him, Mabotha was no longer an askari and it would be a great risk to try to convert him into an askari again.
Information was gleamed from Klopper's affidavit, that from Marble Hall, Mabotha was taken to Soweto where he was further interrogated by askaris. He was detained under Section 29 of the Internal Security Act for some six months during 1989 and his detention was determined on 10th October 1989.
Some time shortly before the 10th October 1989, Major Potgieter of the Soweto Security Branch telephoned De Kock and requested his assistance as he believed Mabotha could not be released into the streets and be allowed to be at large. De Kock aligned himself with this view. At that time De Kock and Potgieter were both majors although De Kock was the senior.
When Potgieter requested De Kock's assistance with Mabotha, De Kock understood him to have suggested that Mabotha should be killed. Potgieter denied that he ever suggested that Mabotha should be killed and maintained that he would never have suggested that, because there was a good relationship between him and Mabotha. He thought De Kock would make a plan and give Mabotha accommodation at Vlakplaas until such time as Mabotha would be called to give evidence in a high treason case contemplated against Winnie Mandela. The case never materialised because the political situation changed and political organisations were unbanned and political prisoners were released.
In De Kock's opinion, Mabotha was someone who could never again be trusted. His history was thought to prove this. He had joined the ANC and received training from them but on his return to this country and his subsequent arrest, he agreed to become an askari (that is to act as an agent for the South African Police). He then deserted from his new position and joined the Mandela Football Club, a body closely linked to the ANC. On his re-arrest, he again agreed to assist the SAP by giving evidence against Mrs Winnie Mandela. De Kock thought that there was a very real danger he would again revert to the ANC and supply them with information which might place the lives of policemen he had worked with at risk or which might prejudice the operations carried out by the Security Branch or damage the reputation of the government.
It was to prevent this that De Kock decided he would have to be killed. A further contributing factor was that Mabotha had allegedly participated in the killing of two SAP members in a shebeen.
We do not consider the conflicts between the evidence of De Kock and Potgieter as to precisely what was said and how these remarks were in fact understood to be of any importance in our arriving at a decision. They were giving evidence about an incident that took place years ago and both of them had different interests in mind when the conversation took place. De Kock was interested in protecting his unit and his country by permanently removing a potential danger. Potgieter was concerned with a possible prosecution of a very public figure and wanted to safeguard and supervise a potential witness. De Kock and Potgieter had not been working together in respect of either incident. De Kock made it clear that the decision was his and did not attempt to rely on any alleged order from Potgieter who was, as he pointed out, junior to him at the time.
As a result of the conversation De Kock had with Potgieter, arrangements were made to meet some distance from De Deur Police Station near Vereeniging on 4th October 1989, to decide on final arrangements as to how Mabotha would be handed over to the members of Vlakplaas and to conceal his disappearance. De Kock had initiated arrangements for the death of Mabotha and as a result did not want it to be known that his unit had taken Mabotha into custody.
Vermeulen and Snyman prepared explosives and proceeded to Penge Mine to start arrangements for shooting (night ambush) exercises as a cover for the explosion which was to take place that evening when Mabotha's body would be blown up. On the following day they would use phospho-grenades to ensure that any remains were destroyed if this proved to be necessary.
Mentz and De Kock monitored the activities at De Deur Police when Mabotha was handed over to Warrant Officer Brits, Van Niekerk and Sgt Flores, who were in a third vehicle about 500 metres or more away from the Police Station so that there would be no eye witnesses observing the handing over. This was done to protect Potgieter who was handing Mabotha over and also De Kock's group, which was receiving him.
Mabotha was handed over and Brits, Van Niekerk and Flores left for Penge Mine. Mentz and De Kock returned to Vlakplaas to complete some tasks and thereafter proceeded to Penge Mine to join the other members of the group. On the way there, Mabotha who had up to then offered no resistance, was handcuffed.
It was arranged that some members of the group would spend the night at Penge Mine. A fire was made and Mabotha, still in handcuffs, sat next to the fire. De Kock asked him a few questions about his involvement in the shooting of police officers and the whereabouts of weapons. Mabotha did not furnish the required information and laughed. De Kock instructed members of the group and Mabotha to walk down the hill to the mine shaft. They reached a spot where there was about 25 kilograms of military explosives, PE4 about as big as six land mines. Somebody asked "who has the weapon?" At that stage Mabotha saw the charge with a detonator attached to it. He turned around, looked at De Kock as if he wanted to say something. From a distance of about two metres, De Kock fired two bullets from a .38 special and shot Mabotha in the heart.
Brits and Vermeulen removed Mabotha's clothes, which were subsequently burnt so that no traces of them would remain. The body was placed over the explosives and cortex was wrapped around it. Brits prepared the detonator whilst Vermeulen made arrangements for the machine guns to commence firing to cover the sound of the explosion. Brits duly detonated the explosion and inspected the scene afterwards. Vermeulen and others did so the next morning when no traces of the body were found.
In his application for amnesty, which was heard separately from the other members of the group, Mentz's evidence differs from De Kock's. He mentions that when they arrived at Penge Mine, Mabotha was chained to a pole, that Mabotha pleaded with De Kock not to be killed. Mentz also mentions that at Penge Mine, members of the group braaied meat and drank liquor.
After the operation, De Kock reported to Brigadier Schoon that Mabotha, "the askari who had run away" would not bother them again, euphemistically meaning that he did not exist anymore. Schoon simply accepted the report and did not ask for details. Schoon, in his affidavit said he had no recollection of any such conversation and had he understood De Kock to be reporting a killing, he would have questioned him about it.
Applicants Brits, Klopper, Snyman, Vermeulen and Flores also testified before the Amnesty Committee. They gave evidence about the specific roles they individually played in the abduction and killing of Mabotha and the subsequent cover up of the incident.
After Brits, Klopper and Flores received Mabotha near De Deur Police Station and whilst driving away their vehicle was overtaken by De Kock and Mentz's vehicle. As pre-arranged, that was a signal for them to stop. Mabotha was overpowered and handcuffed. De Kock approached their vehicle and sarcastically said to Mabotha "You think you are clever" and left.
Due to the fact that the version of the Mabotha incident as stated in Potgieter's affidavit materially differed from the evidence by De Kock, the Committee decided that it was necessary to call Potgieter as a witness, to give evidence under oath and be subjected to cross-examination.
The conflicts between his version and that of De Kock have been referred to above.
Based on the aforegoing evidence, the Committee has to decide whether the Applicants are entitled to amnesty. In doing so, it should be borne in mind that an application for amnesty is based on three pillars. Firstly, the application should comply with the technical aspects of the Act in that a form should be completed and submitted before the cut off date. The Committee finds that this requirement has been complied with.
Secondly, the incident for which amnesty is sought should be an act associated with a political objective. The evidence before this Committee is that Mabotha could legally have been accepted and used as an askari again after he had returned back from the ANC. The Committee was told that it could have been a great risk to accept him to be an askari again. It was feared that he would easily return to the ANC again and involve himself in ANC activities or supply information to the ANC. It was also feared that askaris at Vlakplaas would not have welcomed him, suspecting that Mabotha might have exposed their identities to the ANC. If he was released from detention and allowed to go wherever he liked, it was feared that he would obviously go and rejoin the ANC. He was regarded as a political enemy to the Security Forces. The Committee finds that the application complies with Section 20(1)(b) of the Act with regard to act associated with a political objective.
The third pillar requires that the Applicant should make a full disclosure of all the relevant facts. In this application, the Committee looked at the areas where details of events in one Applicant's version differs from that of another, such as when Mentz states that on their arrival at Penge Mine, Mabotha was chained to a pole whereas De Kock stated that he was sitting next to the fire, where Mentz says before he was shot and killed, Mabotha was pleading for his life to be spared, whereas De Kock said he shot Mabotha before he could say anything when he noticed the explosives linked to a detonator and possibly started to suspect for the first time that he was going to be killed.
Ms Ramula Patel, the TRC's Evidence Leader, argued strongly that because of the discrepancies and contradictions between the evidence of the Applicants it cannot be said that the Applicants have made a full disclosure. Ms Patel argued that their conduct was not proportional to the objective they intended to achieve.
The Committee finds that these discrepancies are not fatal to the application and can be ascribed to the long period of time which has passed from the date of the incident and when the application for amnesty was brought before the Committee.
The discrepancies which cause some concern are those between Potgieter's and De Kock's version as already pointed out above.
The Committee finds that De Kock's evidence cannot be rejected on the basis of Potgieter's evidence. The Committee is satisfied that the Applicants meet the requirements of "full disclosure".
In the result the Applicants De Kock, Brits, Snyman, Vermeulen and Flores are granted amnesty for the following offences:
a) The abduction of Johannes Mabotha at or near De Deur Police Station, Vereeniging on 10th October 1989.
b) The murder of Johannes Mabotha on the same date at Penge Mine near Burgersfort, Mpumalanga Province.
c) Desecration of the body of the deceased.
d) Contravening Sections 2, 28, 29, 32, 36 and 39 of the Arms and Ammunition Act 75 of 1969.
e) Contravening Section 2 of the Dangerous Weapons Act 71 of 1968.
f) Contravening Sections 3,4,5,6,9 and 27 of the Explosives Act.
g) Intimidation.
h) Obstructing the course of justice.
i) Any offence or delict directly arising from the incident mentioned in (a), (b) or (c) above.
The Applicant Klopper is GRANTED amnesty in respect of the following offences:
a. Assault with intent to do grievous bodily harm on Johannes Mabotha at or in the vicinity of Marble Hall.
b. Intimidation.
c. Any offence or delict directly arising from the incident mentioned in (a) above.
It is the opinion of the Committee that the mother and member of the family of Johannes Mabotha, who were represented at the hearing, are victims in terms of the Act.
DATED AT CAPE TOWN this day of 2000
______JUDGE A WILSON
______
ADV N SANDI
______
MR J B SIBANYONI AC/2000/085
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.
EUGENE A DE KOCK 1ST APPLICANT
(AM 0066/96)
LEON W J FLORES 2ND APPLICANT
(AM 3461/96)
DOUW GERBRANDT WILLEMSE 3RD APPLICANT
(AM 3721/96)
ANDRIES VAN HEERDEN 4TH APPLICANT
(AM 3763/96)
IZAK D BOSCH 5TH APPLICANT
(AM 3765/96
JOHANN HENDRIK TAIT 6TH APPLICANT
(AM 3922/96)
MARTINUS RAS 7TH APPLICANT
(AM 5183/96)
WILHELM BELLINGAN 8TH APPLICANT
(AM 5283/96)
ADRIAAN BAKER 9TH APPLICANT
(AM 5284/96)
PETRUS SNYDERS 10TH APPLICANT
(AM 5286/96)
DECISION
These are applications for amnesty by former members of the Vlakplaas Unit. All the applications are for accessory after the fact to culpable homicide of an askari, Pumelelo Moses Ntehelang, at Vlakplaas in 1989, and other crimes of delicts flowing therefrom including conspiracy to defeat the ends of justice and desecration of a body. In the case of de Kock he also asked for amnesty for fraud consequent upon the arrangement he made to have the deceased's salary paid to his mother to cover up his disappearance. At the relevant time de Kock was the Commanding Officer and Baker the second in command of the unit. All the other applicants worked under their supervision and command. At the trial de Kock was convicted of the offence of accessory after the fact to culpable homicide and a sentence of twelve years' imprisonment was imposed. Initially he had been charged with murder but the Court decided that the State had failed to prove intent on his part.
The Court further accepted that he could not have been responsible for the death of the deceased. In the result it was held that, regard being had to the evidence, the only inference that could be drawn was that van Heerden and another member(s) of Vlakplaas had negligently caused the death of the deceased by subjecting him to prolonged suffocation with a rubber tube. At this stage we refrain from making any comments on the findings of the Court and shall deal with the evidence before the Committee. In general, none of the applicants explicitly take responsibility for the death of the deceased, save for van Heerden who says he took part in the interrogation during which the deceased was killed. But it is clear that his drunken state had a great deal to do with his conduct. At one stage he implicated Bellingan but later withdrew that version and said Bellingan only brought the rubber tube and questioned the deceased whilst he was being interrogated. These allegations are denied by Bellingan who says he immediately left the canteen when de Kock hit the deceased with a snooker cue. There is a great deal of confusions and contradictions as to who exactly participated in the assault and tubing of the deceased that led to his death. So much so that we do not intend to deal with them, save to say that the interrogation and tubing of the deceased was totally unjustified in the circumstances. Further, the applicants are not seeking amnesty for the killing of the deceased.
The background to this incident is briefly as follows. Shortly before the incident de Kock and his compatriots were deployed in the Eastern Transvaal area along the borders of Swaziland. There they expected a group of armed members of a liberation movement to infiltrate from Swaziland into South Africa. The expected vehicle never came and they were returned to the Vlakplaas base in Pretoria. On their way back they stopped at various places consuming alcohol and on their arrival at Vlakplaas de Kock told them to stay and not to go home. He unlocked the canteen where they continued their drinking spree and playing billiards. At that stage the deceased, who had been working as an askari at Vlakplaas for about seven months had not reported to duty for some time. So much so that he had missed a deployment duty. due to his absence without leave. His whereabouts were unknown and there was a suspicion that he may have been playing a double role of working as an informer for the ANC whilst at Vlakplaas. De Kock says the deceased was reported not to be giving full co-operation and he had been warned that he would have to be watched very carefully.
De Kock says whilst they were playing billiards he was told by one of the applicants, possibly Bellingan, that the deceased had returned. He was somewhere in the Vlakplaas camp and was said to be drunk. He had been found in a nearby shebeen at Laudium. De Kock ordered that the deceased be called and when he came he asked him where he had been all the time he was away, and what he had been doing. The deceased was still drunk and said his pistol had been stolen at a shebeen. He was displaying a very strong sense of contempt. This caused de Kock to lose his temper, whereupon he struck him about four times on the head with the cue. The force applied was so hard that the cue broke. De Kock says he then smacked him with his right hand. The deceased fell to the ground and de Kock left the canteen. He went to his office to recompose himself as he was very angry. Whilst he was there one of the applicants came and told him that "something had happened at the canteen". When he went there he found the deceased on the ground. He was dead. He realised that this would cause serious problems for the South African Security Police and the Government of the day. Unless he devised a way to conceal the body, the existence of the Vlakplaas Unit would be exposed. He ordered one of the applicants to bring a blanket to cover the body and a rope to tie it up. This was done. He contacted Ras, who up to that stage had not been there, and instructed him to come to Vlakplaas at once. He did not tell him why he was calling him. De Kock's plan was to order Ras to find a place where they could bury the body. On enquiring from his colleagues as to what had happened whilst he was away, de Kock was told that the deceased had died whilst he was away, de Kock was told that the deceased had died whilst he was being questioned and suffocated with a rubber tube. He had also been kicked and assaulted. The canteen was cleaned and, to conceal any sign of a murder, Baker was ordered (by de Kock) to "create a false file for a missing person", namely the deceased. De Kock says he also requested Brigadier Schoon to authorise an extension of salary payments for six months. Money was accordingly deposited into the account of the mother of the deceased. He did not tell Schoon what had happened and the surrounding circumstances
Ras testified and confirmed de Kock's evidence; that they loaded the body of the deceased into a vehicle and left for the Western Transvaal where it was buried on a farm that belonged to someone who was known to him. It was himself, de Kock, Snyders, Willemse and Flores. The owner of the farm was not told of the secret grave on his farm. The same farm had previously been used for the same purpose and the owner was made to believe that Ras and his compatriots were simply coming there for hunting. He says that this was quite a shallow grave because when he came to point it out to investigators the bones could not be found. He surmises that it was dug out by hyenas which were quite common in the area, or swept away by water as it was on the banks of a river.
All the applicants say they did not report the incident to the authorities because it was part of the culture that existed at Vlakplaas and in the South African Police in general not to report or to talk about such incidents. In any case, nothing would have happened and political repercussions would have been too ghastly to contemplate for both the police and the ruling party. This tradition of secrecy required members to keep quiet even if they did not agree with a particular act ostensibly committed in furtherance of State security.
It is quite clear from the evidence that was led that the incident flowed directly from the drunken state the applicants were in. It is unacceptable that the deceased was interrogated at a time he was drunk and, what is worse, the interrogators themselves were also drunk. The evidence does not demonstrate a compelling necessity not to postpone the questioning to the next day when everyone was sober. The deceased had not manifested any desire to escape from Vlakplaas. When he returned he had done so on his own volition and he had not been placed under guard to prevent him from escaping. In the circumstances, one can understand why some of the applicants say they walked out of the canteen when the assaults and questioning had commenced. This was clearly not the right time to question the deceased, if they had any serious suspicions about him. There is also no credible evidence that the applicants genuinely suspected the deceased of being a double agent.
There was no evidence that any of the applicants intended to kill the deceased or, in fact, foresaw the likelihood of his death. The use of a rubber tyre during interrogation was all too common at Vlakplaas. In these circumstances, the offence which was committed would have been that of culpable homicide.
However, it is accepted that it was in the interest of the Vlakplaas Unit, the South African Security Police and the Government of the day that the incident be covered up to conceal the way in which members of the Security Police stationed at Vlakplaas had behaved and their relationship with askaris. Although we have made no finding as to who was responsible for the killing of the deceased we are satisfied that the applicants were guilty of being an accessory after the fact to culpable homicide arising out of their conduct in concealing the body or failing to disclose the fact that the deceased had been killed as he was. This "cover up" was in our view carried out to safeguard the interests of the Security Police and consequently of the Government and was an act associated with a political objective.
In the result amnesty is GRANTED to all the applicants for accessory after the fact to culpable homicide and for all crimes and delicts flowing therefrom and to de Kock for fraud in connection with the extended salary paid to the deceased's mother.
It is recommended that the dependants of the deceased be declared victims in terms of the Act.
SIGNED AT CAPE TOWN ON THIS DAY OF 2000
JUDGE A WILSON
ADV N SANDI
MR J B SIBANYONI AC/2000/086
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.
______
ALMOND BUTANA NOFOMELA 1ST APPLICANT
(AM 0064/94)
EUGENE ALEXANDER DE KOCK 2ND APPLICANT
(AM 0066/96)
WILLEM FREDERICK SCHOON 3RD APPLICANT
(AM 4396/96)
CHRISTIAN SIEBERT RORICH 4TH APPLICANT
(AM 5011/97)
PAUL JACOBUS VAN DYK 5TH APPLICANT
(AM 5013/97)
FREDERICK JOHANNES PIENAAR 6TH APPLICANT
(AM 5014/97)
JAMES EMIEL WILHELM VAN ZWEEL 7TH APPLICANT
(AM 5017/97)
______
DECISION
______
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995. For convenience sake the Applicants will be referred to only by their surnames.
The application for amnesty relates to the killing of two people, namely Zweli-Banzi Nyanda and Keith McFadden in Mbabane, Swaziland. The Security Police had information that Nyanda was the commander of MK's Natal Machinery and was the instigator of a large number of violent incidents in Northern Natal and elsewhere in South Africa.
A decision was taken at the head office of the Security Branch that steps be taken to eliminate Nyanda and others involved. Those involved in arriving at this decision included General Steenkamp and Brigadier Schoon and instructions were then given to Brigadier (then Colonel) Cronje, who was, inter alia, the officer-in-command of Vlakplaas, to make the necessary arrangements. The Amnesty Committee has already dealt with the application brought by Brigadier Cronje (AM2773/96) and he was granted amnesty in respect of this incident. Reference is made to pages 1-6 and 7-9 of the decision dated 17th February 1999.
The present Applicants, save for Brigadier Schoon, are the people who participated in the attack on the house used by Nyanda as a transit house in Mbabane, when Nyanda and McFadden wwas killed. Their evidence as to the motive for the attack and the details relating thereto agreed with those of Cronje. We are satisfied on the evidence given and the information made available to us that they have satisfied all the provisions of the Act and are entitled to amnesty in respect of their participation in what was clearly a planned, organised attack by members of the police force in furtherance of what they believed to be the political objectives of the government.
The Committee is mindful of the decision of the Supreme Court of Appeal of South Africa in which the Honourable Court found that the TRC, acting through the Amnesty Committee cannot grant amnesty for deeds committed outside the borders of South Africa. It is, however, a fact that although the actual killing took place in Swaziland, the planning and the conspiracy to kill occurred in South Africa and the orders were issued here.
The Committee has had regard to the judgement in Johannes P Coetzee (AM 4116/97) and others (Pages 7-12) which deals with the decision of the Court of Appeal in the case of Stopforth v Minister of Justice and three other Respondents ASALR 1999 Vol 4 at 383 and accepts the correctness of that decision in this regard.
Amnesty is GRANTED to all the Applicants in respect of the acts, omissions, offences and delicts faling within the jurisdiction of the South African Courts flowing from and directly related to the conspiracy to kill Zwelibanzi Nyanda, Keith McFadden and Lawrence at Mbabane, Swaziland on or about 1983/1984, including, inter alia, acts, omissions and offences relating to the use of false passports, illegal crossing of the border and the illegal possession of weapons, arms and ammunition.
The Committee recommends that Nyanda's mother, wife and child and McFadden's sister be declared victims and are referred to the Reparation and Rehabilitation Committee for consideration in terms of Section 20(3) of the Act.
DATED AT CAPE TOWN this day of 2000
______JUDGE A WILSON
______ADV N SANDI
______MR J B SIBANYONI AC/2000/087
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.
______
EUGENE A DE KOCK 1ST APPLICANT
(AM 0066/96)
DOUW G WILLEMSE 2ND APPLICANT
(AM 3721/96)
IGNATIUS COETZEE 3RD APPLICANT
(AM 4119/96)
WILLEM H J COETZEE 4TH APPLICANT
(AM 4122/96)
LODEWYK DE JAGER 5TH APPLICANT
(AM 4126/96)
JOHANNES V VAN DER MERWE 6TH APPLICANT
(AM 4157/96)
MARTHINUS G VAN WYNGARD 7TH APPLICANT
(AM 4376/96)
ANTON PRETORIUS 8TH APPLICANT
(AM 4389/96)
WILLEM F SCHOON 9TH APPLICANT
(AM 4396/96)
SCHALK J VISSER 10TH APPLICANT
(AM 5000/97)
CHRISTO P DEETLEFS 11TH APPLICANT
(AM 5001/97)
PAUL J VAN DYK 12TH APPLICANT (AM 5013/97)
FREDERICK J PIENAAR 13TH APPLICANT
(AM 5014/97)
______
DECISION
______
The Applicants are applying for amnesty in respect of any offence or delict committed in connection with and which is directly related to the killing of Pantsu Smith, Soipho Dlamini and Buzi Majola on or about 13th and 14th December 1986, at or near Mbabane in Swaziland and the conspiracy to murder Glory Sedibe on the same occasion.
Evidence was led that the liberation forces used Swaziland as a springboard from where they sent cadres into South Africa. During the relevant period, 1986, there was an increase in land mine and limpet mine attacks in the then Eastern Transvaal. The ANC in their submissions to the TRC referred to thirty explosions during the period November 1985 to July 1987. According to the evidence before the Committee, the majority of these incidents occurred in the districts adjoining Swaziland. Three near Breyten, two near Davel, one in the Vryheid vicinity, two in the Volksrust area, near the border and a few in the Nelspruit area. A number of civilians were killed, including women and children.
All the Applicants were members of the South African Police Force involved in security. General van der Merwe was the head of the Security Branch, Brigadier Schoon was in charge of Section C of the Security Branch in Pretoria and had under his command Colonel de Kock, who was the commander of the Vlakplaas unit. Captain van Dyk and Sergeant Willemse were members of this unit and fell under de Kock's command. Colonel Visser was head of security in the then Eastern Transvaal. He was stationed at Middelburg and Colonel Deetlefs the Station Commander at Ermelo and Warrant Officer Pienaar stationed at Piet Retief, were under his command. Lt General I Coetzee was head of the Security Branch in Soweto and Colonel de Jager, Lt Colonel W Coetzee and Lt Colonel Pretorius and Colonel van Wyngaardt were under his command.
As a result of the increasing number of land mine and limpet mine attacks, a meeting was called at Middelburg to discuss the situation and to decide on preventative measures that could be taken. This meeting was attended by Schoon, de Kock, W Coetzee, Pretorius, Visser, Deetlefs and de Jager. The different units pooled all the information they had gathered and came to the conclusion that the attacks were launched by the ANC unit known as the September Machinery. This unit operated under the broader Transvaal Machinery command. According to the information independently obtained by the different security branches, the September Machinery consisted of Glory Sedibe (MK September) who was the commander and MK's Mzala, Pantsu, Sipho, Busi and Ben. Much of the information was gained from an informant known as SWT 180, who had managed to infiltrate the September Machinery.
The members of the Middelburg meeting decided that the only effective way to deal with the situation was by way of what they called a preventive strike operation. That in fact meant that the September Machinery had to be eliminated. Schoon immediately appointed de Kock as the operational commander, who should take care of the planning and execution of the operation as soon as clearance had been obtained from the Head of Security, General van der Merwe.
On or about 12th December 1986, Schoon, accompanied by I Coetzee, De Jager and De Kock visited General van der Merwe, where he was fully informed of the situation surrounding the September Machinery and why they considered it necessary to strike across the border and to attempt to eliminate as many as possible of the members of the unit. Van der Merwe testified that after carefully considering all the pros and cons of the operation, he authorised the attack. He was convinced that the operation was directed against political opponents of the then government of South Africa, that the operation would meet with the approval of his superiors and the government of the day, that he acted within the scope of his authority and that he considered it to be his duty as a policeman in the then prevailing circumstances. He testified that there was enormous pressure on the security police at that stage to curb and prevent land mine and limpet mine attacks. Politicians and members of the public blamed the police for not protecting civilians and for their failure to prevent these attacks. He considered the proposed operation as the only effective means to at least curb future attacks. It was testified that the operation seems to have been a factor in the significant decrease in these attacks during the following years. Van der Merwe further testified that he accepted full responsibility for the operation, although he did not take any further part in the carrying out thereof.
The Applicants thereafter immediately brought everything in motion to carry out the operation on the following day. De Kock, having been appointed operational commander, instructed W Coetzee and Pretorius to get hold of informer SWT 180 and to request him to make contact with the September Machinery and to furnish De Kock with a sketch plan of the house where they stayed in Fountains, Mbabane and to report to Coetzee and Pretorius in Swaziland about the whereabouts of the members of the September Machinery.
On Saturday, 13th December 1986, SWT 180 entered Swaziland through the Oshoek border post. All the Applicants, with the exception of General van der Merwe, travelled to the Swaziland border. Schoon,, I Coetzee, Visser and Van Wyngaard remained in South Africa at a guesthouse, while De Kock, W Coetzee, Pretorius, De Jager, Deetlefs, Van Dyk, Pienaar and Willemse crossed the border at different border posts. All of them used false passports except Deetlefs and Van Dyk. They had an appointment to meet at the Royal Swazi Spa Hotel.
Late during the night of 13th December 1986, SWT 180 reported to W Coetzee and Pretorius that he had made contact with MK Pantsu, MK Sipho, MK Busi and MK Ben and after they spent the evening socially, he drove them to the house in Fountains. De Kock thereafter deployed the members of his operational team near and around the house while he ordered SWT 180, under threat of his life, to knock at the front door and call upon the inhabitants to open the door under the pretext that he had a flat tyre and required assistance.
When Pantsu opened the door some of the Applicants stormed into the house. According to the plan, MK Pantsu, MK Sipho and MK Busi were shot and killed. It transpired that MK Ben must have left the house whilst SWT 180 went back to report to W Coetzee and Pretorius. At the time of the shooting, as pre-arranged, De Kock, Pretorius, Van Dyk, De Jager and Willemse entered the house. De Kock, De Jager and Pretorius fired shots, whilst Van Dyk hit one of the deceased with the gun butt and the silencer attached to the gun.
After the shooting all the members of the team entered the house, grabbed documents and weapons which they found in the house and vacated the premises as soon as they could. They drove to the border and left Swaziland by crossing the fence illegally. They did not make use of the border posts.
After considering the evidence and the documents before it, the Committee is satisfied that:
1. The applications formally comply with the requirements of the Act as contemplated by Section 20(1)(a) of Act 34 of 1995.
2. The act, omission or offence to which the applications relate is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of sub-sections (2) and (3) of Section 20 of the Act 34 of 1995.
3. The Applicants have made a full disclosure of all relevant facts.
It follows that the Committee, in terms of Section 20 of the Act 34 of 1995 "shall grant amnesty in respect of that act, omission or offence."
It is, however, a fact that although the planning and the conspiracy to kill occurred in South Africa and the orders were issued here, the actual killing took place in Swaziland.
The Committee will not repeat what was said in the decision of Johannes P Coetzee and others (London Bomb incident) in respect of offences committed outside the Republic of South Africa, but wishes to incorporate it in this decision. For the reasons advanced in that decision and in view of the conclusion arrived at in these applications, the following decision is made. Amnesty is GRANTED to all the Applicants in respect of the acts, omissions and offences falling within the jurisdiction of the South African Courts flowing from and directly related to the conspiracy to kill the members of the ANC unit, known as the September Machinery and the killing of Pantsu Smith, Sipho Dlamini and Busi Majola at or near the Fountains, Mbabane, Swaziland on 13th/14th December 1986, including inter alia, acts, omissions and offences relating to the use of false passports, illegal crossing of the border and the illegal possession of firearms and ammunition.
DATED at CAPE TOWN this day of 2000
______
JUDGE A WILSON
______
C DE JAGER A.J.
______
MR J B SIBANYONI AC/2000/088
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.
______
KOBUS KLOPPER 1ST APPLICANT
(AM 3762/96)
JOHANN HENDRICK TAIT 2ND APPLICANT
(AM 3922/96)
______DECISION
______
These are applications for amnesty by former members of the Vlakplaas Unit of the South African Security Police. At the time of the occurrence of the incident, Colonel Eugene Alexander De Kock was the Commanding Officer of the Unit. The applications arise out of an incident which occurred at Komatipoort in the Western Transvaal when four arms smugglers were killed by Lucas Kilano and Simon Hidimbwasa who worked for the Security Police. The two were former Ovamboland citizens who were previously members of the anti-terrorist Koevoet Unit.
At the commencement of the hearing the Evidence Leader, Ms Ramula Patel, informed the Committee that all attempts to trace the names and whereabouts of the families and relatives of the deceased were in vain. The applications were therefore heard unopposed. At a previous hearing Wouter Mentz, also a former member of the Vlakplaas Unit, testified and sought amnesty for being an accessory after the fact and defeating the ends of justice. It is in respect of the same offences that Klopper and Tait presently seek amnesty.
Briefly, the facts of the matter can be summarised as follows. In 1991 the Vlakplaas Unit was investigating smuggling of weapons from Mozambique into South Africa through Komatipoort. The information came through Willie Nortje who handled a source. The weapons were intended for the military wing of liberation organisations (The ANC and PAC) but were also available for use by supporters of the IFP, the AWB and criminals who used them to commit acts of violence and terror in the Republic of South Africa. The infiltration of arms through the said point had to be stopped and it was decide that those responsible were to be led into a trap. They would be arrested and questioned with the view to establish who they had sold the weapons to.
The operation was carried out with members of the Special Task Force of the South African Defence Force. Simon and Lucas were to be used to pose as prospective buyers and the Applicants also had information that the smugglers were going to be driving towards the South African borders in a white Ford Cortina.
According to the plan, the Applicants and other Special Task Force members were to park their vehicles and wait on a dirt road near the South African borders. Lucas and Simon were to go into Mozambique and lure the suspects into a trap by posing as prospective buyers. They were to bring the suspects to the dirt road and when close to the Applicants and others, who included Wouter Mentz and Willie Nortje, make a signal. The suspects were then to be arrested and interrogated to ascertain who their clients were.
The Applicants and Nortje who also testified, say they waited at the point for quite some time and at some stage abandoned the operation. Later Lucas and Simon came to report that they had shot and killed the suspects because they suspected that the latter were trying to get them into a trap for robbery. They had taken them to some place with a dead- end road for discussion. It is then that they decided to kill the suspects to save their own lives. At that stage the Applicants had already consumed a great deal of liquor, hence the confusion and discrepancies in evidence as to what precisely followed after the report and on whose suggestion. The Applicants decided to withdraw from the area altogether. They went to Schoemans Police Station where there was more consumption of liquor. In his testimony Mentz said he was so drunk he could not clearly recall of the events that followed, let alone the sequence.
At the time there were strong rumours and accusations that the police were using hit squads and "Third Force" operatives against liberation movements. It was particularly feared that if it became known that the police were using ex-Koevoet members, this would compromise the National Party Government in the negotiations which it held with liberation movements to secure a political settlement in the country and would have made things even more difficult for the Nationalist Party Government. What followed thereafter was a cover-up.
Klopper testified that he contacted De Kock and Brigadier Engelbrecht to whom he reported the incident. He then went to the scene of the shooting with photographers. He took Lucas and Simon and Nortje was also in their company. The plan was to "reconstruct" the scene so that it would appear as if the smugglers had opened fire on the Special Task Force members who were parked on the side of the road.
The plan was going to be further that the said members had returned fire in self-defence. The two (2) ex-Koevoet members were to be left completely out of the picture and no mention was made of their involvement or role in the incident. The corpses were taken to the mortuary at Komatipoort where a docket was opened. Mentz made a false affidavit, in line with the concealment of the truth and this was filed in the docket.
Having considered all the evidence, we are of the view that the Applicants are entitled to amnesty. They have complied with the requirements of the Act and appear to have given a full disclosure of all the relevant facts. It is clear that they acted on behalf of the South African Security Police and in furtherance of perceived interests of the previous government.
Amnesty is therefore GRANTED to both Klopper and Tait for the following offences arising from the killing of four alleged arms smugglers at Komatipoort:
1. accessory after the fact to murder;
2. defeating the ends of justice; and
3. For any other offence or delict flowing from the incident.
In his application Klopper also sought amnesty for omission to take steps against Mentz for killing one of the smugglers who he thought was still alive. There is no evidence that the said smuggler was alive at the time and on the contrary evidence being that they were all dead when the Vlakplaas Unit members came, amnesty cannot be considered in this respect. No offence of murder is committed by shooting an already dead person.
SIGNED at CAPE TOWN this day of 2000
______
JUDGE A WILSON
______
ADV N SANDI
______MR J B SIBANYONI AC/2000/089
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.
______
EUGENE ALEXANDER DE KOCK 1ST APPLICANT
(AM 0066/96)
DOUW GERBRANDT WILLEMSE 2ND APPLICANT
(AM 3721/96)
DAVID JACOBUS BRITS 3RD APPLICANT
(AM 3745/96)
WILLEM ALBERTUS NORTJE 4TH APPLICANT
(AM 3764/96)
IZAK DANIEL BOSCH 5TH APPLICANT
(AM 3765/96)
JOHANN HENDRIK TAIT 6TH APPLICANT
(AM 3922/96)
NICHOLAS JOHANNES VERMEULEN 7TH APPLICANT
(AM 4358/96)
MARTHINUS DAVID RAS 8TH APPLICANT
(AM 5183/96)
______
DECISION
______
The above Applicants are seeking amnesty mainly for the conspiracy and murder of the following members of the Chand family:
1. Sam Chand;
2. Hajira Chand; 3. Redwan Chand;
4. Amina Chand; and
5. Imran Chand
6. Poding Pule
The facts and evidence, briefly stated, are as follows. Sam and Hajira were an exiled couple and Pan Africanist Congress ("PAC") supporters.
At the time of the occurrence of the incident in 1990 they were based in Botswana. The Chands had left South Africa in the 1960's and lived in Botswana wherefrom they assisted APLA cadres to infiltrate into the country to carry out military operations on its behalf. Redwan, Amina and Imran aged 26, 23 and 17 respectively were their children who lived with them and allegedly also supported the PAC. To this end they worked as guides for APLA cadres crossing the border between Botswana and the Republic of South Africa. Poding Pule worked as their gardener and a security guard at the premises.
After the hearing of evidence in this matter, the Supreme Court of Appeal (Vide Veenendaal vs Minister of Justice et al: Case No. 317/97) issued a judgment that the Amnesty Committee has no power to grant amnesty in respect of offences committed outside the borders of the Republic of South Africa. We have no choice but to abide the decision.
It accordingly follows that in the main we shall concern ourselves with the crime of conspiracy to kill the victims, which crime was committed in the Republic of South Africa and executed in Gaberone. There are other statutory and common law crimes that flow from the incidents and those we shall specify hereunder.
Returning to the facts of the case, in 1990 De Kock, who was the Vlakplaas Commander, was summoned by his superior, Brigadier Nick van Rensburg, to his office. At that stage De Kock was on "special leave" as the Harms Commission of Inquiry which investigated alleged gross human rights violations and cross-border operations by members of the South African Forces was in progress. Van Rensburg told De Kock that he wanted him to carry out an attack on a house belonging to the Chands in Botswana. This was to be done as a matter of urgency.
He also told him that in the past few months a large group of PAC Cadres had infiltrated the country through Botswana. They had done so with the assistance of the Chands. De Kock says at that stage he knew the Chands to be working for the Directorate of Covert Operations of the military intelligence unit of the South African Defence Force.
Previously and a few months before, his (De Kock's) unit had collaborated with the Directorate in the arrest of four armed PAC cadres and Tony Oosthuysen from DCC wanted the four men to be killed. De Kock says he was told by Oosthuysen that the Chands were double agents and were involved in the infiltration of cadres, but this was a "controlled operation". It was the policy of the DCC to allow cadres to come into the country and monitor them. He says this was creating problems for the South African Security Police because in many cases such cadres would never be traced again once they were inside the country. It was because of this problem that Van Rensburg gave the order that the transit house be destroyed and the infiltration stopped. He testified that the order was given in the presence of Brigadier Schoon.
In the same meeting the "problem" of an askari by the name Ngqulunga was discussed and it was decided that he was to be "silenced".
Both Van Rensburg and Schoon deny having had such a meeting and giving such an order to De Kock. For our purposes it is not necessary to make a finding on the matter. In our view it is clear that De Kock bona fide believed that he was acting on behalf of the South African Security Police when he carried out the operation. It was the duty of the Security Police to maintain law and order in the Republic of South Africa and the Vlakplaas Unit was created specifically to deal with insurgency and to counter any possible attack on the Security Forces and civilians.
After the meeting, De Kock had a meeting with Ras and gave him the order to investigate the exact location of the Chand's house, with the view to destroy it. Investigations by Ras revealed that the house was about one an a half kilometres away from the border and further inquiries by De Kock from the head of C2, Naude, revealed that about 76 heavily armed PAC cadres had come through that point. These cadres had also been "lost" and were at large in South Africa. The operation was to be carried out in such a manner that an impression would be created that it was a PAC attack on the Chands. DCC (Oosthuysen) was not supposed to know about the mission and no askaris or black police were to be involved. There was no information about minor children staying with the Chands and the order was to kill every person found there. They went there expecting resistance from PAC cadres and the Botswana Defence Force ("BDF") as the house was very close to the border. They also expected that every occupant of the house at the time would have some association with the armed struggle against the government of the day.
On the day of the attack, late at night, De Kock ordered the unit members who are Applicants herein, to take scorpion machine pistols, AK-47s and explosives of approximately 30 to 40 kg. The explosives were going to be used to destroy the house. Three of them went to check the situation at the border post and came back to report that BDF members were there. Using binoculars, they confirmed that nothing had changed regarding the target. They then decided not to use the border post and jumped over the fence to get to the Chands' house. As they approached the house the security guard came out and addressed them in some language they could not understand. He was shot dead on the spot and some of them, with the exception of De Kock, proceeded into the house where they shot everyone. Accidentally, De Kock had fallen on a ditch and injured his knee.
After shooting all the occupants, bombs and explosives were placed in the house and as they were crossing the borders back to South Africa they heard a loud explosion. They all went to Empangeni in KwaZulu-Natal where they spent two days. The aim was to create an alibi in the event of an investigation into the incident. There can be no doubt that the Applicants acted on behalf of the South African Security Police, of which they were members. They clearly acted with a political objective, namely to stop APLA infiltration into the country by using Botswana borders. They also appear to have given a full disclosure of all the relevant facts.
In the result amnesty is GRANTED to all the Applicants for the following offences arising from the attack in the Chands' house, in respect of:
1. The conspiracy to commit murder in respect of all the persons that were killed in the attack;
2. Conspiracy to commit malicious injury to property;
3. Contravention of the provisions of the Explosives Act 26 of 1956;
4. Any statutory offence relating to the border control and illegally crossing the borders of the Republic of South Africa;
5. Defeating the ends of justice; and
6. For any offence or delict flowing from the incident.
The next-of-kin of the deceased are hereby referred to the Reparation and Rehabilitation Committee for consideration as victims in terms of the Act. It is further recommended that the other panel of the Amnesty Committee reconsider its decision in the light of the new evidence that has arisen regarding the ages of Redwan; Amina and Imran as well as the role they allegedly played to render assistance to APLA cadres.
SIGNED at CAPE TOWN on this day of 2000
______JUDGE A WILSON
______ADV N SANDI
______MR J B SIBANYONI AC/2000/090
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.
______
EUGENE ALEXANDER DE KOCK 1ST APPLICANT
(AM 0066/96)
DAVID JACOBUS BRITS 2ND APPLICANT
(AM 3745/96)
JOHANNES JACOBUS SWART 3RD APPLICANT
(AM 3750/96)
WILLEM ALBERTUS NORTJE 4TH APPLICANT
(AM 3764/96)
LAWRENCE JOHN HANTON 5TH APPLICANT
(AM 4076/96)
ANDREW RUSSELL CAVILL TAYLOR 6TH APPLICANT
(AM 4077/96)
JOHANNES ALBERTUS STEYN 7TH APPLICANT
(AM 4573/96)
______
DECISION
______
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995 ("the Act").
The Applicants, who are for convenience sake referred to by their surnames, apply for amnesty in respect of the following incident:
The conspiracy, planning, abduction, assault and killing of Goodwill Colin "Neville" Sikhakhane ("Sikhakhane") on 29 January 1991 at or near Greytown in the then Natal.
All the Applicants except for Taylor who is deceased testified. The gist of their evidence is to the effect that Sikhakhane had become an "askari" during 1988 after defecting from the ANC who were apparently intent on sending him to Angola due to, inter alia, disciplinary problems. Some of the Applicants and their colleagues assisted Sikhakhane, his common law wife and their child to enter the Republic unlawfully. Sikhakhane and his family were moved to the Pietermaritzburg area.
At the time material to these applications he was working with the "Terrorist Location Unit" which was a sub-branch of the Security Branch of the South African Police, Division Natal, based at Camperdown and under Taylor's command.
Steyn testified that towards the end of 1990 or early 1991 Taylor had approached him in connection with problems regarding Sikhakhane’s discipline and fears that he might be a security risk. According to Steyn, his and Taylor's efforts to encourage Sikhakhane to improve his conduct met with no response. In the light of the grave danger to the State as a consequence of the security risk which Sikhakhane thus represented he ordered his elimination. Steyn then approached De Kock who was at the time the officer in command at Vlakplaas for assistance in the matter. He, in the apparent belief that Steyn had "cleared things" with General I J Engelbrecht ("Engelbrecht") (de Kock's senior), dispatched Nortje, Brits and Swart to Natal to undertake the operation in collaboration with Taylor and Hanton.
Engelbrecht denies any knowledge of the matter and Steyn insists that he didn't "clear the matter up" with Engelbrecht. However, in the light of the euphemisms used and the prevailing "need to know" culture we have no reason to doubt De Kock's bona fides in the matter.
De Kock testified that he handed Nortje between five and seven thousand rand in cash for necessary expenses and a silenced AK-47 for use in the operation. He then gave instructions for Nortje to liaise with Taylor and Hanton with regard to the further conduct of the operation.
Nortje, Brits and Swart met Taylor and Hanton at Mooi River as arranged and proceeded to a bar at Mpushini where they discussed what needed doing and thereafter they checked into the Lion Park Inn where further planning was done with Hanton after Taylor had left. The following day Nortje hired a minibus. Hanton made an arrangement to meet Sikhakhane later that night and the AK-47 was tested. A site for the killing was reconnoitred. False registration plates were fitted to the vehicle.
The four of them then left for Greytown. They stopped off at a bar in new Hanover where they waited until the time they had arranged to meet Sikhakhane arrived. They then proceeded to Greytown and met Sikhakhane. After they picked up Sikhakhane they drove off. Nortje and Brits who had been hiding in the back of the vehicle then overpowered Sikhakhane and handcuffed him. In the process Nortje assaulted him by hitting him on the head a number of times with some sort of leather "baton" containing a metal ball. Brits was also hit on the hand in the process and blood was found in the vehicle the following day.
They drove to the place identified earlier that day. It was an isolated spot on the Kranskop Road approximately five kilometres outside Greytown where the road passed through plantations. Sikhakhane was taken out of the vehicle, carried up a bank by Nortje and Brits. Hanton followed them while Swart drove off in the vehicle to avoid attracting attention. Brits held Sikhakhane down by placing his foot on Sikhakhane's throat. Nortje shot Sikhakhane two or three times with the AK-47. Swart returned soon after this and they departed for Pietermaritzburg.
The next day they cleaned the vehicle and returned to it. Hanton went to report to Taylor and Nortje, Brits and Swart travelled back to Vlakplaas and reported to de Kock. He says that he reported to Engelbrecht. De Kock says he gave Nortje the balance of the cash left over from the operation in the sum of approximately R2000.00. This was confirmed by Nortje. However, it is apparent to us that Nortje had no expectation with regard to this payment and that it formed no part of his motivation with regard to the acts committed.
There was no clarity before us about how Sikhakhane's body was found, identified or whether an investigation or inquest was held. We have seen a copy of the post-mortem examination which was conducted after his body was exhumed and are satisfied that the finding accords with the evidence tendered by the Applicants.
Although there were numerous small inconsistencies and improbabilities in the evidence of some of the Applicants that we do not intend to canvass for the purposes of this decision, we are satisfied that they have made a full disclosure of all relevant facts. It is clear to us that most of the Applicants believed that Sikhakhane posed a serious security risk to them and their colleagues and that the information at his disposal could have seriously embarrassed the then Government and weakened its negotiating position. Alternatively, some of the Applicants acted upon the orders of senior officers whose judgement they trusted and in any event would not have questioned. We are thus satisfied that the Applicants have complied with the requirements of Section 20(1) of the Act.
In the result amnesty is GRANTED in respect of all acts, omissions or offences, including delicts, arising from or in connection with:
1. The conspiracy, planning and killing of Goodwill Colin "Neville" Sikhakhane ("Sikhakhane") on 29 January 1991 at or near Greytown in the then Natal ("the killing");
2. The relevant contraventions of Act 75 of 1969 arising from the unlawful possession of an AK-47 automatic rifle, a Makarov pistol and the ammunition for both firearms in connection with the killing;
3. The abduction of Sikhakhane prior to the killing;
4. The assault on Sikhakhane prior to the killing;
5. Defeating the ends of justice in connection with the killing;
6. Assisting Sikhakhane and his family to enter the Republic of South Africa unlawfully during April 1988; in the following respects to the following Applicants:
a) Eugene Alexander de Kock: with regard to 1, 2 and 5 above;
(b) David Jacobus Brits: with regard to 1, 2, 3, 4, 5 and 6 above;
(c) Johannes Jacobus Swart: with regard to 1, 2, 3, 4 and 5 above;
(d) Willem Albertus Nortje: with regard to 1, 2, 3, 4 and 5 above;
(e) Lawrence John Hanton: with regard to 1, 2, 3, 4 and 5 above;
(f) Andrew Russel Cavill Taylor: with regard to 1 and 5 above;
(g) Johannes Albertus Steyn: with regard to 1 and 5 above.
Amnesty is REFUSED with regard to the fraud and theft of State monies in connection with the killing.
The Amnesty Committee is of the opinion that the relatives and dependants of the deceased Goodwill Colin "Neville" Sikhakhane are victims as defined in the Act and are accordingly referred to the Committee on reparation and Rehabilitation for consideration as such, in terms of Section 26 of the Act.
DATED at this day of 2000
______JUDGE A WILSON
______
MR J B SIBANYONI
______
MR I LAX AC/2000/091
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.
______
GABRIEL THAMSANQA NJIYELA APPLICANT
(AM 7346/97)
______
DECISION
______
The Applicant applies for amnesty in respect of the following offences:
1. The murder of Elphas Ndwandwe on 13 October 1991 at Phola near Ogies;
2. The attempted murder of Amos Behteba Sitole on 13 October 1991 at Phola near Ogies;
3. The malicious damage of the property of Bekuyise Wilfred Nyatikazi at house 644 Phola Township near Ogies; and
4. The illegal possession of firearms, ammunition and explosives on 13 October 1991 at Phola Township near Ogies.
The Applicant testified that he is Xhosa speaking and is at present residing at Umzimkhulu. During 1991 he was working as a driver and transported workers from Phola to the Kendal Power Station. The workers consisted of Zulu speaking people from KwaZulu-Natal and Xhosa speaking people from the Transkei and Eastern Province. The Xhosa speaking people predominantly supported the ANC whilst the Zulu speaking people lent their support to the IFP.
Violence was rife in the area and the two groups at one stage occupied different zones and for three days attacked each other. Although this might be observed to be a faction fight the real issues were political and culminated into a political issue between ANC and IFP supporters.
It is common cause that IFP supporters used to visit the house of Mr Nyatikazi, the school principal in the area. Mr Nyatikazi denied that there was any IFP meetings held at his house but agreed that his house was often visited by people who were IFP members.
The Applicant testified that on the day in question he was approached by the ANC members to transport inter alia Daniel Luvumo, Jacob Vusi Nkosi, Patrick Thubeni, Phethela Mnukwa, Richard Maliphate and Michael Luthuli to the vicinity of house 644 Phola. They carried bags with them and he was aware that the bags contained arms and ammunition and explosives. He was also aware that a decision had been taken to attack Mr Nyatikazi's house and he associated him therewith.
He transported them to a corner near house 644 and drove away. Soon thereafter he heard loud explosions and knew that the attack had been carried out. As a result of the attack Mr Ndwandwe was killed and Mr Sitole injured. They were visitors at house 644 at the time. The owner of the house, Mr Nyatikazi was absent from the house at the time of the explosion. According to him he suffered damaged in excess of R20 000.00.
Mr Nyatikazi denied that he was the chairperson of the IFP at the time. He stated that Mr Zulu was the IFP chairperson and IFP leader in the area. It seems however that the applicant bona fide believed that he was involved in the IFP organisation in the area and he was perceived to be a political opponent involved in the struggle. The Applicant didn't actively take part in the attack on the house but assisted in transporting the attackers and associated him therewith.
The Committee is satisfied that the attack was associated with a political objective, that the Applicant has made a full disclosure of the role he played in the attack and of the identity of the other people involved.
The Committee is satisfied that the requirements of the Act have been met.
Amnesty is GRANTED to the applicant in respect of:
1. The murder of Elphas Ndwandwe on 13 October 1991 at Phola near Ogies;
2. The attempted murder of Amos Behteba Sitole on 13 October 1991 at Phola near Ogies;
3. The malicious damage of the property of Bekuyise Wilfred Nyatikazi on 13 October 1991 at house 644 Phola Township near Ogies/ and
4. The illegal possession of firearms, ammunition and explosives on 13 October 1991 at Phola Township near Ogies.
The Committee is of the opinion that Mr Nyatikazi as well as the next-of-kin of the late Mr Elphas Ndwandwe as well as the injured Mr Amos Behtemba Sitole should be considered to be declared victims in terms of Section 22 of Act 34 of 1995.
SIGNED at on the day of 2000
______
C D DE JAGER A.J.
______
ADV F BOSMAN S.C.
______
ADV S SIGODI AC/2000/092
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.
______
MBHEKISENI MDUDUZI DLAMINI APPLICANT
(AM 4246/97)
______
DECISION
______
The Applicant applies for amnesty in respect of the following offences:
1. Murder in that upon or about 27 August 1991 and at or near Breakfast Hill Farm in the district of Underberg he unlawfully and intentionally killed Paul Bertram Nicholson a 76 year old male.
2. Robbery with aggravating circumstances in that upon or about 27 August 1991 and at or near Breakfast Hill in the district of Underberg he unlawfully assaulted Paul Bertram Nicholson and Anna Margaretha Nicholson, a 73 year old woman and intentionally used force and violence to induce submission by the aforesaid persons to take and steal the sum of approximately R540.00 in cash and to rob them of the said money.
The Applicant was sentenced to life imprisonment on the murder charge and to 6 years imprisonment on the robbery charge.
Apart from the oral evidence lead at the hearing, the Committee was also furnished with two recent affidavits by the Applicant, the one dated 2 February 200 and the other dated 16 February 2000. The indictment, summary of substantial facts and the judgement and sentence at the trial formed part of the record.
The Applicant had made a statement in proceedings under Section 119 of the Criminal Procedure Act stating that on the day in question he had found the deceased walking on his farm and had approached him with a view of obtaining employment from him. The deceased said that he had no work to offer him. According to the statement the Applicant then begged the deceased for money but the deceased did not give him any money. The deceased left him and went to his house. The Applicant followed him, later gained entrance to the house through an open window and positioned him behind the kitchen door. When the deceased entered the kitchen after a while, he surprised the deceased. A struggle ensured and he stabbed the deceased twice with a sharpened iron rod which he picked up at the house of one Mananza who stayed on the deceased's farm. He thereafter proceeded towards the lounge but met the deceased's wife in the passage leading to the kitchen. He threatened her and stabbed at her. She was injured on the hand and in the shoulder. She thereupon, on his demand, handed money to him.
According to his evidence in court he counted the money and Mrs Nicholson tried to get hold of the iron rod while he was counting the money on the bed. he, however, forestalled her and demanded more money. The original amount was R500.00 and she thereupon led him to the office where R10.00 was obtained and to the pantry where she handed a further R30.00 to him. The Applicant also told the magistrate during the Section 119 proceedings that he worked for Barnett Construction and that the deceased had been instrumental in obtaining a reduction of their salaries.
In his evidence at the trial the Applicant said that this statement was false and that he had made it on advice that it would help him in getting a more lenient sentence.
In evidence before the Committee (and in his recent February 2000 affidavits) the Applicant testified that the deceased was a leader of the AWB in the Underberg area. He stated that:
"The reason why I also had a misunderstanding with him was because he advised on Mr Barnett that he should reduce our wages from R25.00 per day to R5.00 per day."
It later transpired that he worked for Barnett while he was still at school and 14 years old. He only worked for him for about two weeks. It remains unclear how deceased could influence Barnett in 1982 to reduce the salary of a schoolboy from R25.00 per day to R5.00 per day and it is clear that the Applicant had no evidence that this indeed happened. It is also not clear how this vague allegation could be the reason for a murder 9 years later. (It is clear that he based this on speculation). It was later stated by Mbanjwa that it was indeed the deceased's brother Desmond, who advocated a reduction in salaries whilst he (Desmond) would pay his workers more than the other farmers would do in order to draw workers from other farms.
The Applicant further testified that while he worked for one Ronnie he was assaulted by him. On being asked why he didn't attack the said Ronnie instead of the elderly Nicholson, he said that it did pass his mind before he became interested in politics but the said Ronnie was joking and playful. It therefore doesn't seem that this ill-treatment by Ronnie played a role in the attack on the deceased.
The Applicant further testified that it was his intention to kill several farmers. The deceased was the first victim but he intended to kill his brother Desmond Nicholson also. During his evidence it transpired that he once asked the deceased for a lift to a medical clinic. He said the deceased did take him to the clinic but upon being asked why he killed the man that did him a favour, he said that the interpreters must have interpreted wrongly. The deceased did stop next to him but on being asked for a left laughed at him and drove away. It is rather ironic that just before the murder the other intended victim, Desmond Nicholson, also assisted the Applicant by giving him a lift from Underberg to the vicinity of the farm where he committed the murder.
At the present hearing the Applicant started his evidence by explaining why he committed the murder. He said that it was for political reasons because his organisation didn't have money, they need the money.
He then continued to say he chose Nicholson as target because he didn't give Black people any rights. He used to harass, torture and sometimes beat them. He oppressed them. He perceived him to be a member of the AWB. He, however, conceded that he had no personal knowledge of any instance where this happened. He referred to an instance where women were beaten in the streets but on being asked about it, he stated that one Ronnie and Michael were involved and not the deceased. One of his co-workers, Lapiya Mbanjwa, who supported his evidence about ill-treatment by Ronnie, stated that he didn't know or hear that the deceased ill-treated his workers. The deceased even allowed his workers to keep cattle on the farm, something other farmers did not allow. He didn't know to which political party the deceased belonged to but he had heard about the AWB and thought all White farmers belonged to the AWB.
The son of the deceased, Derrick Nicholson, also gave evidence. He testified that his father never supported the AWB. He was a member of the old United Party (later NRP) and believed in shaking hands with Black people and he promoted the idea of Africans in parliament. His father attended farmers' meetings. These meetings were never held on their farm and were not political at all. Neither he nor his parents knew the . He conceded that there might have been ill-treatment of Black people by a farmer or two, but stated categorically that he was not aware of it and that the deceased definitely did not ill-treat his workers.
The first question to be decided is whether these offences were associated with a political objective and whether the Applicant acted as a member or supporter of a political party or liberation movement. The Applicant testified that he acted as a supporter of AZAPO. He had not up to then joined AZAPO because there were no members in the area. He had never met any of the AZAPO leadership. He had on one occasion met a man known as Patrick Mkize whom he believed was an AZAPO member but he could not discuss matters with him because the latter was in a great hurry. He himself kept his support for AZAPO a secret because he feared he might lose his work if it was known. At a stage he discussed his political vies with members of MK but they told him that he should rather join AZAPO. They, however, did not dissuade him to kill farmers. He wanted to move to Pietermaritzburg after the murder where he intended to meet Mr Harry Gwala who he believed would have been able to give him directions as to where he could meet AZAPO leaders and how he could join AZAPO.
It is against this background that the Committee has to decide whether this was a politically motivated act, robbery for personal gain or an act out of revenge. As far as revenge is concerned, it must be borne in mind that the Applicant, on his own version, never worked for deceased and was never assaulted by deceased. His contact with deceased related to an incident where he asked the deceased for a lift and the deceased would not take him to a clinic. The deceased ridiculed him because of his injury - his own evidence on this aspect failed to satisfy us as to what really happened on that occasion. We find it strange that on his evidence at his trial he requested the deceased to employ him the very afternoon before he killed him. He confirmed this at the present hearing and also that the deceased told him that he had no work for him. It seems more probable that he thereafter decided to commit a robbery in order to get money and that he encountered resistance from the deceased which resulted in a confrontation that caused the death of the latter. He thereafter proceeded to carry out his intention to rob.
We accept that there was no love lost between him and the farmers but find it hard to believe that he was politically motivated to commit murder on behalf of or in support of a political organisation with whom he had no previous contact at all.
It is also significant that he wanted to obtain money for AZAPO, an organisation which he did not know, except for its broad political policy. he could not have had any knowledge of its financial affairs and whether they were bankrupt or in need of money.
The Committee is not satisfied that he met the requirements of the Act and amnesty is REFUSED.
SIGNED AT THIS DAY OF 2000.
______
JUDGE C DE JAGER
______
ADV F J BOSMAN
______
ADV S SIGODI AC/2000/093
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.
______
EUGENE ALEXANDER DE KOCK & OTHERS APPLICANT
______DECISION
______
This decision emanates from an application to seek clarity on the matter of subpoenaing persons in terms of Section 29 read with Section 31 of Act 34 of 1995 as amended ("the Act"). During the hearing, the matter of securing a person, willing or otherwise, to testify at the hearing, was raised. In effect this would entail the making of certain rulings related to the said application.
The Act is silent on the procedure to be adopted in issuing a subpoena to secure the presence of any particular person. Neither does it refer to any authority through which such a subpoena should be processed.
We are informed (and it seems that this is common cause) that in practice, any party to an application, who wishes to secure the attendance of a person to testify, would have to submit a written request properly motivated for consideration by the commission. Upon receipt thereof, the Amnesty Committee would consider the request, assess it and make a decision on whether to issue a subpoena in respect of the person(s) mentioned in the motivation. This decision depends substantially on whether the proposed testimony of such a witness will in any way materially contribute to the ultimate decision.
Such a decision must therefore be made by the Committee within the context of the evidence before it at the time when the application is considered. At least two problematic aspects arise herefrom. Firstly, Section 29(1)(c) confer the power on the commission to call upon any person to testify before it on relevant issues. Relevant issues must be defined in this instance as being matters falling materially within the context of the hearing the Committee is dealing with at the time.
Section 31 deals with the compellability of such a person to answer relevant questions.
The Act also provides for person who have been implicated by Applicants to be notified of the fact so as to allow them an opportunity to deal therewith as he or she deems fit.
The question regarding the compellability of implicated persons, as defined, to testify and answer any relevant questions further complicates matters.
It is noteworthy also that sub-sections 31(3) and (4) provide for the protection from the future use of incriminating evidence of any person who testifies at hearings. On the other hand, it is trite law that any person has a right to remain silent in the face of prospects that an answer to a question may amount to self-incrimination. NOTE 1 (see next page).
In view of this provision, the right to the aforementioned protection against self-incrimination is not as weighty as it normally is, if at all. Therefore, the constitutional right of protection against self-incrimination cannot be involved when called to testify in terms of the Act.
RULING ONE In the result, the fact that a person may be an implicated person does not preclude him or her from being a compellable witness in any hearing convened in terms of the Act.
From this flows the second issue which involves two legs.
The first one relates to the written motivation and in particular the aspect of relevance.
Given that the commission is one that has a limited life span and limited resources, one has to approach such matters with such limitations in mind not forsaking the quest to serve the process fully.
NOTE 1
It is precisely this tension between a person's right to silence and the protection provided by sub-sections 31(3) and (4) of the Act upon which clarity is sought. This provision is intended to encourage a person to tell the truth without risking future prosecutions based on that evidence. The right to remain silent in the face of self-discrimination in the context of the Act seems, by necessary implication, to be negated by this provision which is designed to facilitate the enquiry into the truth while protecting the right against self-incrimination.
The aforementioned limitations narrow the amnesty process in this regard to a fine line. It therefore becomes imperative to examine any motivation supporting the call for the issue of a subpoena very critically. Relevancy in this context relates to specific disputed matters raised in each specific application for amnesty.
It does not allow for general questioning on a variety of aspects but is restricted to clear issues pertaining to the specific disputes with the case of an amnesty applicant.
It follows, therefore, that questioning a witness in the hope that some information may be forthcoming, (either positive or negative) would not fall within the confines of this fine line.
It is also necessary to critically analyse how the proposed evidence, if produced, would impact on the amnesty application, if at all. The motivation must be clear, detailed and to the point especially as to relevance as defined above. There ought to be real prospects of such evidence having a direct and real impact on the application and in particular, materially contribute to its result.
Consequently, an application to have a subpoena issued would not succeed if the motivation falls short of the above contention.
This leads to the second leg of this aspect. If a request for the issue of a subpoena is successful to any degree, the question as to who leads the witness, rights to cross-examine and so forth arise.
For practical reasons, it is important to establish who in fact has "called" the witness.
It is true that the process of issuing a subpoena is conducted through the Committee and is based on the motivation of a party to the proceedings. It could be argued that strictly speaking, it is the Committee that has subpoenaed the witness who is consequently the witness of the Committee. All parties would then have the right to cross-examine the witness who is led by the Committee. (This would be the case if a witness was in fact called by the Committee). On the other hand it could be argued, as it was, that the Committee cannot be seen to be calling witnesses "on behalf of any party". It (the Committee) would then be seen as less than objective. This argument does not carry any weight in the circumstances. It must be remembered that it does not sit as a court of law but is in fact as a committee established by the Act. It's duty, therefore, is to establish the truth and then to decide on the question of amnesty.
In the circumstances, therefore, if the request to subpoena a person is granted then the Committee should then establish from such a witness what his or her evidence is in regard to the issues for which he or she was actually subpoenaed. Cross-examination by all the parties would then follow. It must be emphasised that the testimony of a witness so subpoenaed shall be strictly confined to the parameters of the issues for which such a witness was subpoenaed. RULING TWO
Therefore, such a witness is the witness of the commission and whose evidence shall be confined to the relevant issues for which he or she was subpoenaed to testify.
SIGNED at CAPE TOWN this day of 2000
______JUDGE R PILLAY
______JUDGE S KHAMPEPE
______ADV F BOSMAN AC/2000/094
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.
______
NNDWAMATO AMOS MUHADI 1ST APPLICANT
(AM 2717/96)
NDANDULENI PHILLIP RERANI 2ND APPLICANT
(AM 2718/96)
NYADZANI DE VILLIERS SIOMA 3RD APPLICANT
(AM2719/96)
CHATER NDIDZULATHI RAGWALA 4TH APPLICANT
(AM 2720/96)
ROGAN KHATHUTSHELO ROMASITSI 5TH APPLICANT
(AM 2723/96)
JOHNSON THILIVHALI MASITHULELA 6TH APPLICANT
(AM 2724/96)
DAVID MAKANA NEMAKHAVHANI 7TH APPLICANT
(AM 2725/96)
ABEL LUFUNO MULADY 8TH APPLICANT
(AM 2726/96)
A D RAMMBWA 9TH APPLICANT
(AM 2727/96)
A A MAIVHA 10TH APPLICANT
(AM 4300/96)
J M MAKATU 11TH APPLICANT
(AM 4319/96)
FUDUMULANI LAWRENCE MADUNA 12TH APPLICANT
(AM 7348/96)
AVHAPFIANI JOSPH LUKHWA 13TH APPLICANT
(AM 3278/96)
TSHAMAAN EDISON TSHIBALO 14TH APPLICANT
(AM 3277/96)
MAUBA DANIEL MALIMA 15TH APPLICANT
(AM 2537/96)
JOSIA DAVHANA MUALUDZI 16TH APPLICANT
(AM 3282/96)
NORMAN RAMALATA 17TH APPLICANT
(AM 3283/96)
SAMUEL MASHUDU MATALA 18TH APPLICANT
(AM 3284/96)
KUDZINGANA ASMUEL KUDZINGANA 19TH APPLICANT
(AM 7254/97)
MALUTA SIMON MATSHISEVHE 20TH APPLICANT
(AM 7206/97)
ASAPH MAMMBURU 21ST APPLICANT
(AM 7440/97)
JUSTICE RAMABULANA 22ND APPLICANT
(AM 6523/97)
WALTER MUDZWIRI 23RD APPLICANT
(AM 6678/97)
AZWINNDINI CEDRIC MOLOVHEDZI 24TH APPLICANT
(AM 7668/97)
MUTSHUTSHU SAMUEL MAGORO 25TH APPLICANT
(AM 2714/96) SALANI PHILIMON BALOYI 26TH APPLICANT
(AM 2534/96)
MARUBINI GEORGE LESHABA 27TH APPLICANT
(AM 4313/96)
HARRIOT MATHEBULA 28TH APPLICANT
(AM 4188/96)
MAVHULAMA JOHANNES MAKANANISE
(AM 4301/97) 29TH APPLICANT
TSHINYADZO DANIEL MAUBA 30TH APPLICANT
(AM 4169/96)
MBULAHENI VICTOR MUKHELI 31ST APPLICANT
(AM 7360/97)
FREDDY FHATUWANI DAVHULA 32ND APPLICANT
(AM 7692/97)
MMABATHO POPULAR MULAUDZI 33RD APPLICANT
(AM 3280/96)
MMBENGENI MUTALI 34TH APPLICANT
(AM 3281/96)
SOLOMON MODISE MUENDA 35TH APPLICANT
(AM 6379/97)
AUBREY LESHWEU MOKALENG 36TH APPLICANT
(AM 4112/97)
T A MASHAMBA 37TH APPLICANT
(AM 3279/97)
A K MUTHELO 38TH APPLICANT
(AM 4289/96)
L F MUNYAI 39TH APPLICANT
(AM 7356/97)
N MULANDZI 40TH APPLICANT (AM 6680/97)
______
DECISION
______
The Applicants apply for amnesty in respect of various crimes. They make application in terms of Act 34 of 1995 as amended (hereinafter referred to as "the Act").
The applications are unusual as they relate (somewhat) to the practise of witchcraft in the area of the Northern Province (formerly known as Venda).
The various applications are opposed on the basis that they were not committed with any political motive but were related to jealousy and malice on the part of the Applicants. It is therefore necessary to delve into the concept of witchcraft as was perceived and practised in the area, at the time.
Professor V N Ralushi testified on behalf of the Applicants. He was the Chairman of a commission (hereinafter referred to as the commission) established to investigate witchcraft, ritual murders and other related crimes. In completing their duties as such, the commission travelled to various tribal areas in the district which fell within its jurisdiction. There they interviewed traditional doctors, members of the different religions, church leaders, members of civic organisations, ordinary people and other relevant groupings.
When the leaders of the area which became known as Venda opted for independence, not all of the aspects of witchcraft seem to have been adequately dealt with by the anti-witchcraft Act. Generally, chiefs of the districts formed part of a tier of government at the time. They were regarded as believing in witchcraft. It seems that it was one of the findings of the commission that the chiefs in general did believe in witchcraft. Coupled with this, was the bona fide belief in the area that chiefs were associated with ritual murders which flowed from witchcraft. There was the further belief that witchcraft enhanced the powers of chiefs and ensured the maintenance of their political powers. It was therefore believed that the chiefs were the custodians of the witches. There was also the bona fide belief that those who practised witchcraft were more than willing to help chiefs in their endeavours to retain authority and power over the community. There was therefore a general fear, especially amongst the youth, that ritual murders would be resorted to more readily by the chiefs and government officials, to entrench their powers. Indeed the evidence disclosed that a number of members of government were prosecuted for such murders and at least one of them was convicted thereof.
The commission also found that there was a belief by the then Government of the Republic of South Africa, who wanted to have de facto control of the area, that chiefs were able to effectively manage the area politically because of the general respect they enjoyed from the people of the area of Venda. This belief grew amongst the ordinary folk and those who sought democratic change, particularly amongst those who sought reincorporation into a democratic Republic of South Africa.
The Chiefs were perceived by the youth to be a front for the South African Government and their cohorts in Venda.
The use of witchcraft, to wield political power put those who indulged in witchcraft and/or ritual murders in as much political danger as the chiefs and government officials were.
It was Professor Ralushi's view also that while the general public, especially the youth, had a genuine belief about the required political changes, it was enhanced and fuelled by similar political actions in other parts of South Africa where the youth organised themselves and others and targeted those who helped the machinery of apartheid.
He also testified that it was possible that at times, the youths were used as pawns in order to settle private disputes on the pretext that their actions were related to political considerations. He mentioned that this latter occurrence was the exception rather than the rule. However, the youth still had a bona fide belief that they were acting with a political interest. Various youth groupings started to be formed in Venda to attend to the political interests of the area.
It transpired during the evidence of the Applicants that the position of those who indulged in witchcraft in the area was discussed by the political leaders. These were not only leaders from the local community but also from outside the area as well. It followed therefore that in tracing the chain of apartheid power from the effects of apartheid on the majority of people in the area to ultimate conductor(s) of the apartheid apparatus, chiefs and those who indulged in witchcraft were seen to be important political cogs in the system affecting the people of the area from which the Applicants came. It seems that the matter was discussed on an organisational basis by high-ranking officials and as a result those who assisted the apartheid institutions like chiefs and furthermore those who assisted the chiefs and government officials became targets of the anti-apartheid movement.
The Act provides that amnesty shall be granted to an Applicant if his or her application complies with certain requirements as prescribed therein. The Committee must be satisfied that:
Firstly, the formalities have been fulfilled; secondly, that the offence(s) for which amnesty is sought, was committed by reason of the advancement of a political stand; and thirdly, that the Applicant has made a full disclosure of the facts related to the commission of the offence(s).
A. N A MUHADI (AM2717/96); N P RERANI (AM2718/96); N D SIOMA (AM2719/96);C N RAGWALA (AM2720/96); R K ROMASITSI (AM2723/96); J T MASITHULELA (AM2724/96); D M NEMAKHAVHANI (AM2725/96) AL MULADY (AM2726/96);AD RAMMBWA (AM2727/96); AA MAIVHA (AM4300/96); JOHANNES MOUFHE MAKATU (AM4319/96); F L MADUNA (AM7348/96)
Most of the youth of the Mavungha area joined the Mavungha Youth organisation, (the organisation). This was a loose association intended to be structured into a fully fledged youth movement affiliated to an existing national youth umbrella body.
The events which lead to the crimes for which amnesty is sought, arose during the process of trying to properly establish the Mavungha Youth Congress. It is clear that the persons who associated therewith, honestly believed in its principles and understood the reasons for its existence and associated themselves with its activities and the results thereof. It was intended to be politically based to assist in facilitating a democratic change in the area and the reincorporation of Venda into the Republic of South Africa.
The deceased was a member of a high profile family in the area. It seemed that the Mavungha area was indeed referred to by the very name of this family. It was no secret that the family was directly involved at some level of government and, as was believed by the community, the benefits thereof set most of the members of that family above the rest of the community in many ways.
It is common cause that the deceased was involved in farming and possessed a number of farming implements to carry on his farming operations. These farming implements were those which were not normally owned by ordinary Black people, farming in the area. This led to the conclusion by many people in the area that he was able to afford such farming implements because of the benefits attained from the apartheid regime as a reward for helping them "control" the areas at the expense of the general population.
There is evidence that, what looked like human bodies, were seen to be off-loaded at the deceased's farm. The high level of his productivity at the farm with so few farm labourers, led to the belief that he used what was termed "zombies" to work his orchards. Presumably the aforesaid human bodies, were used to evolve the zombies. The belief that it was being done by means of the supernatural powers of witchcraft and through which the deceased was also able to sustain himself and the apartheid mechanisms.
In addition it was evident from the testimony of most of the Applicants that the deceased had a tendency to interfere with the activities of the organisation. He would, for example, question the singing of freedom songs about Mr Nelson Mandela. Indeed it seems that he was able to stop them initially as a result of his status in the community because he behaved like the chief of the area. On one particular day, when they were attending a youth meeting in the mountains, (it was held in the mountains because of the deceased's previous interference with the youth activities) most of the youth were stoned and some of them assaulted by the deceased and others. As a result, some of the youth refused to attend further youth meetings and thereby adversely affecting the building of the organisation. Consequently, a meeting of the village people was held to discuss the situation. The meeting decided to report the matter to the local headman and to request what is known as a "trek pass" which was a notice of eviction from the area because the deceased's presence there could no longer be tolerated. The trek pass was obtained but the deceased did not adhere thereto. Even the intervention of the South African Police Services to ensure compliance with the pass did not help.
It was by custom, imperative to adhere to the trek pass as did three (3) other persons (thought to be involved in witchcraft and evicted with the aid of a trek pass procedure).
Consequently, the youth met again on the 6th April 1990, about three (3) days after the incident on the mountain to discuss the matter. It was decided that all of them would go to the deceased's kraal and tell him to leave. They marched to his kraal but he refused to go. The crowd got angry and stoned his home, burnt his motor vehicle and killed him. His wife, Rosinna, was hit by some of the stones but was allowed to leave the kraal with her children.
Ndanduleni Phillip Rerani testified that he first saw the mass going to the home of the deceased. He saw them throw stones at the property and burn the vehicles. He also threw stones at the property in which the deceased was at the time. He did not know why the deceased and his property was being attacked and he had no particular reason for doing so himself.
Ndwamato Amos Muhadi, a member of the association was informed of the said meeting. He was delayed and on his way to the venue he saw the people already on the march to the deceased's kraal. He was informed of the decision and accompanied them to the deceased's kraal. He participated in the subsequent attack on the deceased and his property. He wanted to rid the area of the deceased because he saw him as one who was indulging in witchcraft and assisting to maintain the political situation in Venda. He is in a slightly different position to the others as he did not attend the meeting held immediately prior to the events. However, he was informed of the proceedings and decisions taken at the meeting. It is the view of the Committee that it does not materially affect his position and he ought to fall within the general group when the applications are considered.
Roger Khathutshalo Ramasitsi was one of the leaders with the group. He was the first to testify. He did not make a good impression as a witness and we had difficulty following his reasoning and some of his allegations such as the belief that the deceased made use of Zombies to work his farmlands. Generally, on its own, his evidence would not stand up to scrutiny. However, his version fits in with the general evidence of all the other Applicants whom we believe. The reasons for his action and what exactly occurred prior to and during the commission of the offences for which he applies for amnesty is consistent with that of most of the other Applicants. We will consequently consider his position together with the majority group of the applicants.
The rest of the Applicants were all present at the meeting of the 6th April 1990 and from which they went to the deceased's home. All associated themselves with the attack on the deceased and his property, participating in various ways. It is not necessary, in our view, to deal with the action of each of the individuals save to mention that each did something specific, be it throwing stones or setting the deceased or his property alight and made common cause with each other. In the result they all contributed to the death of the deceased and the destruction of his property.
The Act requires that amnesty shall be granted if the Committee is satisfied that the formalities of the Act have been complied with and provided that the offences for which amnesty is sought were associated with a political objective and that full disclosure regarding the facts relevant to the commission of the offence(s) has been made.
At the outset we wish to emphasise that we approach this application on the basis of the evidence placed before us. We are of the view that each case must be dealt with on its own merits and in terms of the evidence placed before this particular Committee.
In this application we are satisfied that the required formalities have been complied with. We are also satisfied that the requirement of full disclosure, as envisaged by the Act, has been complied with by all the applicants.
The issue which is the focal point of this application revolves around the requirement related to the political motive for the commission of the crimes for which amnesty is sought.
In this particular matter, we are presented with a complex set of circumstances linked to issues of witchcraft activities in the area together with the reliance thereon by the chiefs who were the political authority in the area. Coupled with that is the belief that the chiefs allowed themselves to be used to control the area on behalf of the then South African Government. Furthermore, these offences were being committed by a strong desire, especially amongst the youth of the area, to reincorporate the Venda area into the Republic of South Africa.
It must be understood that what is contained herein must not in any way be sen to support the idea that those who indulged in witchcraft practices were able to actually exercise unusual powers so as to influence the flow of events. It is clear to us, however, that there was a genuine belief amongst many of the residents of the area that witchcraft was a phenomena from which unusual powers could be derived. it is also clear that there was a bona fide belief, not only amongst the youth but also amongst high-ranking officials within certain political parties, that the Nationalist Government of the Republic of South Africa opportunistically used this fear of or belief in witchcraft together with the respect for the chieftain system to its political advantage. In particular, this was the reason for resistance to reincorporation of the Venda area into the Republic of South Africa. There was also a bona fide belief that the chiefs indulged in witchcraft or sought such assistance to maintain their political authority for their own advantage and also to the advantage of the Government of the Republic of South Africa.
It is clear that the behaviour of the deceased towards the Applicants and their association enhanced their belief that the chieftain system and witchcraft played a significant political role in the area and in the lives of the people who lived there.
Rosina Mavhunga, the deceased's second wife and to whom he was married at the time of his death testified. She opposed the application. It is not clear why she did so because she did not state reasons for doing so. In any event she denied knowledge of the alleged behaviour of the deceased towards the association. She did not know of any witchcraft practices that the deceased might have been involved in. She put that so strongly that she seemed convinced that the deceased was not involved in such practices. However, significantly, she did not deny that such practices were rife in the area.
In our view, the Applicants had a bona fide belief:
(1) in the alleged capabilities of witchcraft and that it was being used for political reasons and that the deceased indulged therein for political ends;
(2) that the deceased's anti-democratic activities were designed to stifle the development of the Mavhunga Youth Congress and reincorporation into the Republic of South Africa;
(3) his refusal to adhere to that society's mechanisms to solve the problem (his refusal to adhere to the directive of the trek pass indicates that he intended to continue with his harassment of the democratic forces of the area).
His death and the attack on his property were therefore a direct result of a bona fide belief that he was the source of political frustration to the people in the area.
The position of Ndanduleni Phillip Rerani is different and as he did not have any reason, political or otherwise, to commit any of the offences. His application therefore falls to be REFUSED.
In the result we are satisfied that all the other Applicants have complied with the requirements of the Act and amnesty is GRANTED to them for:
(a) the murder of Edward Mavhungu on the 6 April 1990;
(b) arson in respect of the deceased's home on the 6 April 1990; and
(c) public violence in respect of activities at and outside the deceased's home on the 6 April 1990.
It is recommended that Rosina Mavhunga, the deceased's wife, be declared a victim as envisaged by the Act. it is further recommended that the Reparation and Rehabilitation Committee also investigates the prospects of each of the deceased nine (9) children also being declared victims.
B. A J LUKWA (AM 3278/96); T E TSHIBALO (AM 3277/96)
The Applicants make application in terms of Act 34 of 1995, as amended ("the Act") in respect of nine counts of murder and eleven counts of arson. These are as follows:
The murders of:
1. Mr Johannes Mualusi
2. Mr Jack Ramarumo
3. Mrs Leah Tharaga
4. Mr Tshirongana Libada
5. Mrs Rebecca Nenzhelele
6. Mrs Maggie Matshusa
7. Mrs Fanyisani Ndou
8. Mr Makuvhile Andries Budeli Ndou
9. Mr Birima David Khavhakhavha
Arson in respect of the property:
1. Mr Johannes Bualusi at Folovhodwe
2. Mr Wilfred Nefolovhodwe at Folovhodwe
3. Mr Johannes Tshivhidzo Tshibalo at Folovhodwe
4. Mrs Matodzi at Folovhodwe
5. Mr Tshirongana Libada at Folovhodwe
6. Mrs Leah Tharaga at Folovhodwe 7. Mrs Rebecca Nenzhelel at Folovhodwe
8. Mrs Maggie Matshusa at Folovhodwe
9. Mrs Jack Ramarumo at Folovhodwe
10. Mr Makuvhile Andries Budeli Ndou at Muswodi Dipeni
11. Mr Birima David Khavhakhavha at Muswodi Dipeni
All the counts relate to the persons whom the Applicants regarded as those indulging in witchcraft and thereby countering the progress to political advancement of the people in the area of Venda as described above.
The Applicants were part of a large group of persons whose expressed intention, on the 10th day of March 1990, was to deal with those indulging in witchcraft and oppressing the political progress of the residents of Venda. They wanted to overthrow the then government of Venda and desired to the reincorporation of the area back into South Africa.
The Applicants both described how the group of people went from home to home of those whom they intended to attack. In so describing the events of the day, they constantly described how the group attacked each victim and his or her property. In each event the victim died as a result of being burnt and the homes were almost always burnt. They constantly described their individual peripheral roles in each event.
They were not willing to disclose who actually set any victim alight, who poured petrol on any victim, how the homes were burnt or who carried the petrol used as fuel to start these fires.
This was despite being close enough to physically assault some of the victims or to penetrate the homes. The memory of both tended to fail them when it suited them. Applicant Tshibalo in particular, tendered three or four reasons for putting fire to his own father's hut. Neither of these reasons were compatible with another. he tended to change his evidence when it suited his case especially whether or not his father indulged in witchcraft activities.
There does not seem to be any problem with the formalities having been complied with. While there may be reason to doubt these particular Applicant's motives, it is not necessary to determine the requirement of political motive.
Neither of the Applicants made a good impression on the Committee when testifying. They both seemed to be reluctant to describe fully their own roles in any of the incidents and furthermore, both were reluctant to disclose the identity of other leading role players in the incidents in which these offences were committed.
They both disclose very specifically only that which they were willing to admit to. Overall they did not want to implicate others nor did they want to endeavour to contribute to the broader picture of the truth relating to the commission of any or all the offences in question.
Consequently, the Committee is not satisfied that the Applicants have disclosed all that they are able to in relation to the offences. However, the overall political climate in which these crimes were committed sets the crimes within the parameters of having been committed for political reasons.
In the result, the amnesty applications by both Applicants is REFUSED.
The following persons are declared victims as defined in the Act and referred to the Reparation and Rehabilitation Committee for attention and to investigate the prospects in regard to the children of the deceased fathered from his four (4) wives (victims): 1. Vele Khavhukhavhu
2. Martha Ramaruo
3. Neledzani Mauluri
4. Muditambi Makuvhila
C. M D MALIMA (AM2537/96)
The Applicant makes application for amnesty in respect of the murder of Mudzunga Mulaudzi ("the deceased")
The youth of Hampofu area, in the district of Tshitale gathered within the context of the general attitude towards the political situation in the area. As was the case in other districts of Venda, they also paid attention to the role of the witches within the political context.
However, one of the members of the youth congress, Elvis Tshiluka, became mentally deranged. The deceased was regarded as one of the witches who caused the derangement of Elvis. he was asked to rectify the problem but he failed to do so.
The Applicant was also told that the deceased associated with the chief in the Tabalala area. The chief was known as Freddy Tabalala who was a known supporter of the Venda National Party and held a position in Parliament. The deceased, it was believed, was providing assistance derived from the practice of witchcraft to help Tabalala retain his political power. Again, it was reasoned that this would stifle the progress towards freedom and reincorporation into South Africa as desired by the majority of the community. In addition, the youth feared that the deceased would affect more of the membership of the youth congress in the way she had affected Tshiluka. It was reasoned that this would be done to reduce membership and perhaps drive away people from an organisation who opposed the Government.
On the 20th March 1990, the community gathered and resolved, in view of the failure to rectify Tshiluka's situation, as requested, that those indulging in witchcraft practices, had to be killed.
They then went to the deceased's kraal, found her at her cooking kraal. The Applicant hit her with a stone to prevent her from escaping. Her hut was already burning. He compelled her to go into the burning hut and prevented her from escaping from it. She died as a result of this attack.
The Committee is satisfied that the requirements of the Act have been complied with.
In the result, the Applicant is GRANTED amnesty in respect of the murder of Mudzunga Mulaudzi and in respect of arson in regard to her hut.
D. J MAULUDZI (AM3282/96); N RAMALATA (AM3283/96); S MATALA (AM3284/96)
The Applicants make application in respect of the murder of Munzhedzi Emely Makulana ("the deceased") on or about the 21st March 1990.
On or about the 21st March 1990, after various attempts to solve the problem regarding witchcraft as described above, through the chief, the youth organised themselves in the village of Mufunzi. They embarked on a campaign to deal with the problem. The Applicants were members of the organisation which was intended to be officially launched into a fully fledged youth congress similar to those in other areas of Venda. Shortly before the killing of the deceased, the members of this youth organisation in Mufunzi held a meeting. Samuel Matala chaired the meeting and agreed with the decisions concluded there. The problem of political oppression and its relationship with witchcraft was discussed. It was decided that the witches should be killed. Petrol and tyres were obtained in preparation for the killings. The deceased was one of the thee alleged witches identified at the meeting by Thomas Ramashila and George Matalala. Many people then proceeded to the home of the deceased. She was extricated from her home.
After volunteering, one Gerry Mshasha poured the petrol over her. Applicant Mulaudzi assisted him in opening the container. One Thomas Mudau placed a tyre over her. An unidentified person lit it. Her body and the tyre caught alight. As it was burning, she managed to pull the tyre off her but a she burnt and lying on the ground, Mudau and one Elvis Makhumbele put the burning tyre back on her. She lay on the ground burning. They heard the police coming and they then ran away. The deceased died as a result of the aforementioned attack.
Norman Ramalata obtained the petrol having been so delegated by the meeting together with a few others. They obtained it from a place from which petrol is sold. He knew why the petrol was being purchased and associated with the intended killing of the alleged witches in terms of the decision taken at the meeting. He assisted, by surrounding the deceased's home and thereby preventing her from escaping. He also threw stones at the house in which the deceased was at the time.
Josiah Davhana Mulaudzi was at the meeting also and was party to the decision to kill the alleged witches. When the crowd of which he was part arrived at the deceased's home, she was assaulted. Mulaudzi hit her with a sjambok. He also instructed the younger people to put a second tyre on the body of the deceased. He also pelted the house of the deceased with stones.
The Committee is satisfied that the formalities of the Act have been complied with. Furthermore, the Committee is satisfied that the murder of the deceased was committed because of a bona fide belief that she was a witch who was assisting government officials to retain their political power and thereby extend the oppression the community was experiencing. It is further satisfied that all the relevant facts in respect of the commission of the offence have been disclosed.
In the result, amnesty is GRANTED to the three (3) Applicants in respect of the murder of Munzhedzi Emily Makulana on the 21st March 1990 at or near the Mfunzi village.
The following persons are declared victims as defined in the Act and referred to the Committee on Reparation and Rehabilitation for attention:
1. Samuel Makhalane (90)
P O Box 80, Elim Hospital, Elim 0960.
Relationship with deceased - widow.
2. Hilda Tshimangadza Makhuba (53)
P O Box 80, Elim Hospital, Elim 0960.
E. T MAMMBURU (AM7440/97); S KIDZINGANA (AM7254/97); M MATSHIESEVHE (AM7206/97); T RAMABULANA (AM6523/97); T MUDZWIRI (AM6678/97)
The Applicants apply for amnesty in respect of the murder of Frans Mavhunda ("the deceased") and arson in respect of the deceased's hut.
The deceased was believed to be a witch in the area of the Tshiozwi district, Venda. He was also a member of the headman's council and was known to be in close contact with the officials of the then government of Venda.
They all attended a meeting convened by a youth grouping of Tshiozwi similar to those being formed in other areas of Venda. At that meeting the issue of witchcraft and its connection with the political situation was discussed. There it was decided to order these witches and wizards to leave the area, failing which they would be killed.
The Applicants were part of a larger group of people that went to the deceased's home and told him to leave the area. he refused and was thereafter stoned and set alight. His hut was also burnt.
Each of the Applicants either threw stones at the deceased while he was being attacked or assisted in actually burning him. In any event each testified that when they left the meeting they knew what could possibly happen and made common purpose therewith.
The Committee is satisfied that the requirements of the Act have been complied with.
In the result, the Applicants are GRANTED amnesty in respect of the murder of Frans Mavhaudu and of arson in respect of his hut.
The following are declared victims as envisaged by the Act and referred to the Reparation and Rehabilitation Committee for attention:
1. Mavadela Mavhauda, P.O. Box 627, Dzanani, 0955.
2. Josephine Mavhaudu, P.O. Box 627, Dzanani, 0955.
3. Florence Mavhaudu, P.O. Box 627, Dzanani, 0955.
4. Livhuwani Mavhaudu, P.O. Box 627, Dzanani, 0955.
5. Doris Mavhaudu, P.O. Box 627, Dzanani, 0955.
6. Nkumeheni Mavhaudu, P.O. Box 627, Dzanani, 0955.
7. Tshilidzi Mavhaudu, P.O. Box 627, Dzanani, 0955.
8. Matodzi Mavhaudu, P.O. Box 627, Dzanani, 0955.
F. A C MULOVHEDZI (AM7357/97)
The Applicant was a member of the community in Ha-Mphego, Thohoyandou. Similarly, in this area, a youth grouping, intended to be launched as a youth congress was dealing with the position of witches and wizards in terms of the political situation prevailing at the time.
He applies for amnesty in respect of:
(a) Attempted murder on Frans Mafulane;
(b) Arson in respect of the hut of Frans Mafulane;
(c) Attempted murder of Nkhaleni Nemadandila;
(d) Murder of Selinah Ralulimi ("the deceased");
(e) Arson in respect of the hut of Selinah Rahulimi.
After a community meeting on the 4th February 1990, a group of the people, including the Applicant, went on an escapade to kill people identified at the meeting as those practising witchcraft and assisting chiefs and officials of the government. Two of those identified were Mr Frans Mafulane and Mr Nemadandila, the husband of the deceased.
That night the Applicant and others went to the home of Frans Mafulane. He refused to come out of his hut when requested to do so. The Applicant then burnt his hut and as a result, Frans mafulane came outside. The crowed then assaulted him with the intention of killing him in terms of the decision of the meeting. He explains that during this assault Frans mafulane disappeared without trace. They all then left.
The Applicant then went to work in Gauteng. On his return home on or about the 18th December 19843, late at night he saw the naked figure of Selinah Ralulimi. He associated this event with witchcraft especially as her husband was targeted in any event. it seems naked women in public at night were linked to witchcraft. He then obtained a knife and went to her home. Upon knocking, the door was opened by her daughter, Nkhaleni Nemadadila. He stabbed her by accident. He then found Selinah and finally stabbed her to death.
Selinah was not identified at the meeting as a person who should be eliminated. Neither did the Applicant have any reason to think that she was a political threat in any way. Clearly and by his own admission, the stabbing of Nkhaleni was a mistake. The application in respect of the offences related to Selinah and her daughter therefore falls to be REFUSED.
In respect of the offences related to Frans Mafulane, the requirements have been satisfactorily complied with.
In the result, the Applicant is GRANTED amnesty in respect of the attempted murder of Frans Mafulane and arson in respect of his hut.
G. M MAGORO (AM2714/96); S BALOYI (AM2534/96)
The Applicants make application for amnesty in respect of the murder of Nyamaxholise Maduwa ("the deceased") and arson in respect of the hut in which she stayed. The deceased held a leadership position connected to government.
On or about the 21st march 1990, on returning home at night, Applicant Magoro encountered a group of people. He was informed by them of a decision of a community meeting to deal with the witches by first asking them to leave the area. If they resisted or refused to do so, they would be eliminated.
In pursuance of that decision, the crowed went to the kraal of the deceased who was identified as being a person who practised witchcraft. The Applicant associated himself with the decision and accompanied the group. They were aware that the attack could lead to the death of the deceased. When they arrived there she refused to open the door or to comply with the demand to leave. Her home was penetrated and she was set alight inside. She then ran out and was chased. While she was burning Magoro hit her with a stick knowing full well that he was contributing to her death in terms of the decision of the community.
Boloyi hit her with a stick and also helped to stone her. He contributed to her death on the basis of the position witches had in relation to political leaders and the assistance, as it was believed, they rendered to government people.
They both deny knowledge of any arson.
The Committee is satisfied that the Applicants have otherwise complied with the requirements of the Act.
Consequently, amnesty in respect of the murder of Nyamaxholise Maduwa is GRANTED to both Applicants. Amnesty in respect of arson is REFUSED.
H. M G LESHABA (AM4313/96); H MATHEBULA (AM4188/96); M J MAKANANISE (AM4301/97) The Applicants apply for amnesty in respect of the murder of Johannes Selema Malatji ("the deceased"). In the area, Ha Maila, the youth held an open meeting on the 19th March 1990. The position in political terms of those who indulged in witchcraft and the impact that it had on the political power in the area. In this area also, it was honestly believed that the politicians resorted to witchcraft to retain power. This was unacceptable to the majority of the citizens. Four persons, including the deceased, were identified by the meeting as people who assisted the government officials to retain their power. Money to buy petrol and other materials were collected at the meeting in order to kill these people as decided by the meeting of the youth.
A second and broader meeting was held and included members of the community. It was then resolved to go and kill these people. The deceased was part of this meeting. He was identified by others at the meeting. The deceased was known to be close to certain politicians.
A tyre was placed around his neck and lit. He removed it and ran away. He however was burning already. The crowd then pelted him with stones until he fell. He was then stabbed with a sword. He was no longer burning when that occurred. He was questioned about his witchcraft activities and he identified others who worked with him. They were the same people identified at the meeting in which their activities were discussed. he admitted to doing the "work" in the chief's kraal.
Applicant Leshaba and two others fetched tyres and petrol and returned to the deceased.
The deceased was ordered to drink petrol. He refused to do so. Thereafter the Applicant then poured petrol on him. Someone from behind threw a lit match on the deceased and he started to burn again. Others fuelled the fire with grass. Tyres were also put onto the burning deceased. Leshaba also ut one of those tyres on the deceased. The deceased died as a result of the attack.
Applicant Makanaise hit the deceased with a stick while he was running away but before he started to burn. He chanted freedom songs when the others were throwing stones at the deceased. He did nothing further to the deceased. Otherwise he associated himself with everything that occurred.
Applicant Mathebula, in his application form stated that he was not guilty of anything. He repeated that when he started to testify. Upon his realising the problem, he made an attempt to change this and stated that he denied guilt in respect of other matters.
However, the whole of his application clearly refers to the offence(s) committed in respect of the deceased.
He was not a convincing witness at all and the Committee is not satisfied that he has made a proper declaration in respect of the commission of any offence.
The Committee is satisfied that Applicants Leshaba and Makananise have complied with the requirements of the Act. In the result, amnesty in respect of the murder of Johannes Soidaha Silema-Malatsi is GRANTED to Leshaba and Makananise but REFUSED in respect of Mathebula.
The following persons are declared victims as envisaged by the Act and referred to the Reparations and Rehabilitation Committee for attention:
1. Marubini Annah Selema (I.D. No. 47030706638080)
P O Box 153, Munzhedzi 0948.
2. Samuel Selena
P O Box 153, Munzhedzi 0948
I. T MAUBA (AM4169/96); M MUKHELI (AM7360/97); F DAVHULA (AM7692/97)
The Applicants were members of the Manavhela Youth Congress formed in 1986. During 1988, Sharon Mashige, was brutally murdered. Her murder was linked to a ritual murder. As a result thereof, six political leaders were charged with her murder. One of them was eventually convicted.
They apply for amnesty in respect of the murder of Violet Movhe.
Some of the political leaders, including two of those who were acquitted was seen to frequently visit the home of Violet Movhe ("the deceased") who was regarded as a witch who was assisting these political leaders maintain their positions. Strengthened by the killing of Sharon Mashige, it was genuinely believed that the leaders generally maintained their positions because they were assisted by muti, advice and other substances, provided by witches in the area.
The free political activity of the community was being stifled as it was in other areas of Venda.
It is common cause that government officials frequently visited her. In her case also, the youth sought of her to stop her from assisting the political leaders by non-violent means in asking her to leave the area. This failed and led to the youth taking further action to deal with the witches and the relationships in question continued.
This problem went on for quite some time and by the 8th February 1990 a meeting was held to discuss the failure of the deceased to heed to the request to stop her assistance of the political leaders of the area. It was decided to obtain a trek pass from the headman so that she could leave the area. If she resisted or refused to co-operate, she would be killed.
About five hundred people went to her home in order to take her to the headman to obtain this trek pass. On arriving there, the deceased was dragged out of her home because she did not want to co-operate with the group. Upon her resisting, the crowd became impatient. She was questioned about continuing to accept visits from the politicians who were oppressing the people. She was also asked about the whereabouts of people who had disappeared from the area. (She was thought to be ultimately responsible for the disappearance of Walter Muige and Mrs Razwinanai). She did not respond to these questions.
She was then assaulted by about one hundred of them with sticks and stones. The Applicants assisted each other in dragging the deceased out of the house. They all also assaulted her with sticks together with the others in the crowd. She died as a result of the assault on her. The Applicants associated themselves with the attack on her and the resultant death.
The Committee is satisfied that the Applicants have complied with the requirements of the Act.
In the result amnesty is GRANTED to them in respect of the murder of Violet Movhe.
Takalane Sylvia Movhe (ID No. 5901090141080)
P O Box 125, Bbuwani, is declared a victim as envisaged by the Act and referred to the Committee on Reparations and Rehabilitation for attention.
3. M P MULAUDZI (AM3280/96); M MUTALI (AM3281/96)
The Applicants make application for amnesty in respect of he murder of Johannes Linvuma ("the deceased").
By the 2nd February 1990, the Applicants involved themselves in the political campaigns and organisations striving for the downfall of the then Venda government and for reincorporation into South Africa. On or about the 2nd February 1990 a meeting was convened in which the Applicants were participants. The question of witchcraft was raised. In particular, the association of general body of witches with government leaders was discussed. That very meeting was disrupted by the government forces.
However, the meeting was reconvened after the forces left. At the meeting it was resolved that the deceased had to be burnt that night.
The deceased was already one of those identified as one of those visited by and giving assistance to the National Party members. He was known to give those leaders what is known as muti to retain their power and stifle progress of the political aims of the community.
The crowd then proceeded to the deceased's home and he was found there.
Applicant Mulaudzi offered a tyre and paraffin for the purpose of burning the deceased. She then stood guard on look-out for the police. She associated completely with the attack and the results thereof. Others then completed the attack on the deceased. The deceased was pelted with stones by the others in the meantime. The deceased died as a result of the said attack.
Applicant Mutali looked out for the police while the group went to the deceased. Thereafter he carried the tyre and paraffin to the group. He lit the paraffin and the deceased started burning. he then went back to the place where he kept guard.
The Committee is satisfied that the Applicants have complied with the requirements of the Act. In the result, amnesty in respect of the murder of Johannes Limvumu is GRANTED to both Applicants.
Nemodzavho Phineas Shandkani (ID No.4710170189107)
P O Box 2181, Sibisa, Venda, is declared a victim as envisaged by the Act and referred to the Committee on Reparations and Rehabilitation for attention.
K. SOLOMON MODISE MUENDA (AM6379/97); AUBREY LESHWEU MOKALENG (AM4112/97)
The Applicants make application in terms of the Act for amnesty in respect of the murder of Masakona Tseise ("the deceased").
During the late 1980's and early 1990's, the community of Venda as it then was, experienced political strife, under the government under rule of Frank Ravele. There was belief that the government officials and members were being kept in power with the help of the powers of witches. People who indulged in witchcraft thus became political targets of those who sought to change the political situation in Venda.
A number of people alleged to be involved in witchcraft had to be killed during that period because they were thought to be assisting the political leaders to continue with the said oppression and resisting the desire for reincorporation into South Africa.
It is further common cause that during April 1990 there was an overthrow of government and replaced by one under Mr Ramashama. This resulted in the community being allowed to indulge in free political activity. Furthermore, it is common cause, the question of reincorporation of Venda into South Africa wa a matter on the agenda at the multiparty talks at Kempton Park to decide and settle the future of South Africa.
On the 2nd October 1990, the body of Khathutshelo Maphaha was found. She had hung herself. Her family went to a bone thrower ostensibly to establish who was the cause of Khathutshelo's death. The family returned from the bone thrower and reported that the deceased was responsible for Khathutshelo's death. Part of the community then concluded that Khathutshelo's death was politically motivated. There is no concrete evidence to substantiate this conclusion. As a result there was a decision at a community meeting that the deceased should be killed. The two Applicants were party to the decision and went with a large group of the community to the home of the deceased. There she was extricated from her home. Applicant Muenda stabbed her, assaulted her and dragged her to the spot where she was eventually killed. Applicant Mokaleng assisted in extricating the deceased from her home, he assaulted her with a stick and open hand over her body. She was then doused with petrol and burnt. She died as a result of this attack.
Muendo testified that he committed this crime because he believed that the government, as it had been doing under the rule of Ravele, stifled political activity and that it resisted the idea of reincorporation. Because the government was supported by the witches, his political desires referred to above were stifled. Yet there was already a change of government by the time the offence was committed. Further, by his own admission, he was aware that reincorporation was an item on the agenda of the multiparty negotiation.
Mokaleng, on the other hand, primarily did not associate his reasons for committing this offence with those reasons as tendered by Muendo. He seemed to concentrate more on the unlawful (as he testified) activities of certain government officials under previous rulers over the years. He said he distrusted the new government in power in October 1990. Another factor that motivated him into committing the crimes was that Khathutshelo would have been a leading political figure had she not died.
Both were in the same meeting to discuss the situation and it seems strange to us that they would each have committed the offence for different political reasons.
In any event the political situation changed when Ramashama became ruler and political activity was much improved. There was no reason to think that there would be any resistance to reincorporation by the Venda government because it was going to be settled by the multiparty talks.
The Act provides that amnesty shall be granted if the formalities have been complied with and that the offence(s) were committed for political reasons and that the Applicants have made full disclosure of the facts related to the commission of the offence.
The Committee is not satisfied that the Applicants have complied with any of the requirements of the Act and in the circumstances, the application for amnesty is thus REFUSED.
L. T A MASHAMBA (AM3279/97)
The Applicant makes application for amnesty in terms of the Act in respect of the murder of France Khomogwe. ("the deceased").
By the 11 February 1990, the fight against witchcraft especially ritual killings, had taken on huge proportions in the area of what was then called Venda. It was based on the belief already dealt with above.
The Applicant explained that he also believed that those in government were retaining such political power with the help of witchcraft including ritual killings. Like many others, he found the government and its policies unacceptable.
He was at the time a supporter of the ANC and in this way he was also attacking the opposition (to the ANC), who retained their power through what he bona fide believed to be the power derived from the practice of witchcraft.
After being party to a community decision to embark on killing those known to practice witchcraft, the Applicant accompanied others to the home of the deceased. They had already decided that he should be eliminated. The Applicant, armed with a stick, entered the home of the deceased, beat him with the stick while putting him out of the house.
The rest of the crowd then got hold of the deceased. They in turn beat him with sticks and stoned him.
The Applicant knew that the crowed would attack the deceased and kill him. The deceased subsequently died as a result of this assault.
The Applicant then went with the others to seek out one Mafune. He was suspected of being a person who also indulged in the practice of witchcraft. The crowd did not find him at home. However, the Applicant then set the building where he stored his "medicines" alight. This building burnt as well as the two other structures that were part of the homestead.
The Committee is satisfied that the Applicant has complied with the requirements of the Act.
In the result amnesty in respect of the murder of France Khomogwe and three counts of arson in respect of the property of Mafune is GRANTED to the Applicant.
M. A K MUTHELO (AM4289/96)
The Applicant makes application for amnesty in terms of the
Act in respect of the murder of Flora Gumani.
("the deceased")
He relies on the Act which requires that the offences for which amnesty is sought, should have been committed for political reasons (amongst other requirements).
The Applicant testified that he killed the person because he thought that she was involved in practising witchcraft and caused the death of his wife in this way. He went to her home and set it alight. The deceased was burnt therein and as a result thereof, died the next day.
Clearly his actions were not based on any political motive and the application is thus REFUSED.
N. L F MUNYAI (AM7356/97); N MULANDZI (AM6680/97)
The Applicants make application in terms of the Act in respect of the murders of people identified to the Committee only as MADADZHE and MAPHAHA.
They attended a community meeting on the 2nd February 1990 similar to those referred to in other sections of this decision. The campaign against those indulging in the practice of witchcraft was gaining momentum in the area of Venda. The village of Tshino was no exception. This was discussed at the meeting.
The political rationale for killing those practising witchcraft was based on the same factors referred to elsewhere in this decision.
Firstly, a group of members of the community, including the Applicants, went to the home of Mr Maphaha, identified as one such person. Both the Applicants were armed with sticks. The crowd started breaking the windows of his home and he came out. When he came out the people started assaulting him. He tried to escape but was dragged out from a shed and beaten. The Applicants also assaulted him with the sticks they had. As a result of the assault, Mr Maphaha died.
From there they proceeded to the home of Mr Madazhe. The crowd started to break the windows of the house and some dragged him out of his home. When he was outside, he was assaulted by the people including the Applicants. He was then dragged into a hut which was set alight. The hut burnt with Mr Madazhe inside it and he died as a result.
Both the Applicants associated themselves with both attacks.
The Committee is satisfied that the Applicants have complied with the requirements of the Act.
In the result, amnesty in respect of the murders of Mr Maphaha and Mr Madazhe is respectively GRANTED to each Applicant.
SIGNED at CAPE TOWN this day of 2000
______JUDGE R PILLAY
______ADV DE JAGER (S.C.)
______ADV SIGODI AC/2000/095
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.
______
FRANCE MOFAPA MOHLALA APPLICANT
(AM 7507/97)
______
DECISION
______
The Applicant has applied for amnesty in respect of the following offences:
1. Assault of one Sergeant Botha during 1988.
2. Breaking restrictions imposed in terms of the State of Emergency.
3. Not complying with bail conditions.
4. Leaving the country without a passport.
The Applicant testified that he was a United Democratic Front member. His position in the UDF was that of an organiser. He was also a member of uMkhonto weSizwe, the military wing of the ANC. His position in the MK was that of a political commissar. He testified that he was one of the founder members of the UDF when it was founded in 1983.
The Applicant was detained under the security laws of the country after the State of Emergency had been declared. He was detained on 1st December 1986 and was only released in March 1989. The assault on Sgt Botha took place while the Applicant was still in detention towards the end of 1988.
The facts leading to the assault are as follows:
The Applicant was detained together with one Alfred Makaleng who was also a political detainee. This comrade fell ill but the prison officials refused to take him to hospital. As a result of being denied medication as well as access to hospital facilities, this detainee died.
On the day that Alfred died, Sgt Botha came to the prison to give the prisoners food. The emotions were running high and as a result the Applicant poured the soup over Sgt Botha and assaulted him with the soup bowl.
POLITICAL MOTIVATION
The Applicant testified that it was not an instruction of the ANC to pour soup on prison wardens. However, the prison officials were perceived to be part of the apartheid system. When he poured the soup on Sgt Botha he saw it as part of the defence campaign of the ANC. He wanted to send a message that the ANC would not tolerate the type of treatment which they received from the prison officials.
When the Applicant was released from detention, certain conditions were put to him that he had to report to the police station twice a month. He was also restricted to the Makaleng district.
He testified that on the day of his release from detention, he was arrested by the police for the assault on Sgt Botha. He appeared in court and was granted bail of R400.00.
He, however, did not abide by the conditions of the bail and instead left the country illegally without a passport.
Having considered the matter we are satisfied that the Applicant has complied with all the requirements of the Act to qualify for amnesty and that the acts were associated with a political objective and he has made full disclosure of all the relevant facts.
Accordingly, the Applicant is GRANTED amnesty for all the acts that he has applied for.
The victim, Sgt Botha, is referred to the Reparation and Rehabilitation Committee for consideration.
SIGNED ON THE day of 2000
______
JUDGE JOHN MOTATA
______
ADV F J BOSMAN
______
ADV S SIGODI AC/2000/096
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.
______
ABEL RAMOKGOTSI CHOANE APPLICANT
(AM 7058/97)
______
DECISION
______The Applicant applies for amnesty in respect of the following offences:
(a) The killing of Thoba Naphtali Mokudubete alias Rufus during January 1984 at Vienna in Angola;
(b) attempted murder;
(c) unlawful possession of an AK-47 machine gun;
(d) unlawful possession of an AK-47 ammunition; and
(e) unlawful possession of a handgrenade.
The Applicant testified that he got involved in student politics at the age of 14 years in 1980. He was aligned to COSAS and when their teacher, who was an underground ANC member, was arrested, he organised class boycotts in protest of the arrest. During 1980 the Applicant left the Republic of South Africa (RSA) through Lesotho and was trained as an uMkhonto weSizwe (MK) cadre in various countries abroad. He also held various positions within the MK command structures.
On 4th January 1984 he escorted the late Chris Hani on his way to Lusaka via Luanda. On arrival at the Vienna Camp near Luanda in Angola, he remained there whilst the late Hani proceeded to Lusaka. At the time the ANC was experiencing mutiny within its ranks. This was a weekend when they had celebrations of the anniversary of the ANC. Some of the MK cadres were having drinks served by the deceased. At some stage he entered the tent occupied by the deceased when he heard a lively conversation taking place but on his entry the conversation ceased. Upon realising that, he went to his tent to sleep.
Around midnight he was awoken by a combat alarm and immediately went to the gathering point. Six of them responded. The armoury officer, Moffat, informed them of the SWAPO camp which was approximately 700 metres away. They armed themselves and his group consisting of Moffat Taylor, Mr Bigson and Santana moved in the direction of the skirmish. After taking position he saw a figure carrying a net sack on his back moving across their direction. He shouted in Russian, Portuguese and English to stop, but the figure instead turned around and opened fire towards them. He fired in his direction aiming at the figure which he believed to be a Unita soldier and only stopped when he heard screams of agony.
The person was identified as Rufus who had sustained serious injuries. His hand was shot off, hanging through threads of flesh, shot through the thorax and the bullet went through and damaged his testicles. He was immediately taken to hospital, but died at casualty because of non-attendance by the doctors since the casualty area was full of injured soldiers.
During August 1990 he was instructed by Lombard Moli and the late Chris Hani to infiltrate RSA to form Self Defence Units in the Vaal area and Free State.
On his way to Bloemfontein he noticed police in a mini bus. He recognised the driver as Booysen. They called him but he reacted by throwing a handgrenade at them. It exploded near the motor vehicle and he ran away. He was eventually arrested and charged for the crime. He was sentenced to eleven years imprisonment and was released on parole after serving five years.
The applications are not opposed. The family of Mokudubete attended the hearing and their counsel posed questions which only sought clarity. American Petrus Booysen and Letshaba Johannes Sekaleli filed affidavits which corroborated the Applicant's version of how the incident occurred. The Committee is satisfied that the application complies with the requirements of the Act. We are accordingly satisfied that the offences were committed with a political objective as envisaged by the Act and that the Applicant has made a full disclosure of all the relevant facts.
In the circumstances the application succeeds and amnesty is GRANTED in respect of all five offences and all delictual liabilities that flow from such offences.
The Committee is of the opinion that Solomon Mokudubete, Tseliso Mokudubete Azaxiel Mokudubete, American Petrus Booysen and Letshaba Johannes Sekaleli are victims as contemplated by Section 22 and are referred to the Committee on Reparation and Rehabilitation to be dealt with in terms of Section 26.
DATED at CAPE TOWN this day of 2000
______JUDGE JOHN MOTATA
______ADV F BOSMAN
______ADV S SIGODI AC/2000/097
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.
______
DUMISA MDLULWA APPLICANT
(AM 6654/97)
______DECISION
______
The Applicant, Dumisa Mdlulwa, applies for amnesty in respect of an artillery attack by an MK Unit of the military wing of the African National Congress on the Klippen Radar Station at a military base in the former Western Transvaal on 3rd May 1989. Documentary evidence submitted to the Committee indicated that although damage was caused to structures at the base as well as vehicles there were no casualties or injuries on the side of the security forces. The application was not opposed and the only person testify at the hearing was the Applicant himself.
The Applicant testified that the attack was planned outside the Republic of South Africa and upon the orders of Mr Joe Modise. The Applicant was a member of the unit responsible for the execution of the operation of which the commander was General Lombard Moloi. The Applicant himself was tasked to "plant the shells of the mortars". The objective of the attack was to scare the soldiers at the military base who patrolled the borders, to destroy the army base and thus to make the infiltration of the country by MK soldiers easier. However, the "stoppages" of the weapons caused partial failure of the attack and compelled the Applicant and his comrades to retreat in the vehicles which they had used in crossing the border between Botswana and the Republic of South Africa somewhere between Lobatsi and Mafekeng. During the retreat, one of his comrades was injured in an accident and arrested. The Applicant was unable to furnish any further particulars about the last-mentioned and or any other of his comrades whom he only knew by their combat names.
After having considered the evidence of the Applicant and all the documentary evidence submitted to the Committee, the Committee is satisfied:
That the Applicant has complied with all the requirements for amnesty as set out in Section 18 of the Promotion of National Unity and Reconciliation Act, 1995 (Act 34 of 1995) as amended; that the offence was committed with a political objective and that the Applicant has made a full disclosure of all relevant facts.
Accordingly, amnesty is GRANTED to Dumisa Mdlulwa for all offences flowing from or directly associated with the artillery attack on the Klippen Radar Station in the district of Rustenburg in the former Western Transvaal on the 3rd May 1989.
SIGNED on the day of 2000
______JUDGE J MOTATA
______ADV F J BOSMAN
______ADV S SIGODI AC/2000/098
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.
______
JOHN KHOMBOMUNI NGOBENI 1ST APPLICANT
(AM 5735/97)
MUHLAVA MUHLAVA 2ND APPLICANT
(AM 5737/97)
STRANGER JABULANI MBHALATI 3RD APPLICANT
(AM 5738/97)
______
DECISION
______
This application relates to three incidents:
1. The first incident relates to the attack on SADF members at Nkowankowa Stadium near Tzaneen on 12th April 1990. The first and second Applicants, John Ngobeni and Muhlava Muhlava apply for amnesty in respect of this incident which was not opposed and in which no casualties were reported.
2. The second incident relates to the killing of one constable Ngabenziwa Thomas Shinganga, who was a member of the Security Police on the 15th June 190 at Nkowakowa Township near Tzaneen. The first and the third Applicant, John Ngobeni and Stranger Jabulani Mbhalati apply for amnesty in respect of this incident during which the sister of the deceased, one Lilly Mthembu Shinganga, sustain gunshot injuries. The application was not opposed.
3. The third incident relates to an attack of SADF members who ere patrolling at Rita Township, Naphuno District, the then Lebowa on the 16th June 1990. The intended target was a policeman, one Rasebotsa, the then Station Commander at Lenyenye Police Station. The first and third Applicants, Ngobeni and Mbhalati, apply for amnesty in respect of this incident. No casualties were reported and the application was not opposed. In all three incidents illegal firearms and handgrenades were used.
All three Applicants testified at the hearing. The first Applicant, who was involved in all three incidents was the Commander of an MK Unit of which the other two were members. He testified extensively as to his military training and the circumstances that gave rise to all three of the above incidents. He confirmed the membership of the other two Applicants who subsequently confirmed his evidence.
From the evidence it appeared that all three of the incidents occurred in 1990 between April and June at a late stage of the struggle against apartheid. It was submitted that the release of former President Nelson Mandela had nothing to do with the armed combats, but that in fact the incidents referred to above and other similar incidents facilitated the CODESA negotiations.
After having considered all documentary evidence and the oral evidence presented at the hearing the Committee is satisfied that all the Applicants have complied with the formal requirements for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act of 1995 as amended and that the offences were committed with a political objective as defined in the Act. The Committee is furthermore satisfied that the Applicants have made a full disclosure of all relevant facts.
Accordingly, amnesty is GRANTED to:
A. John Khombomuni Ngobeni for;
Incident 1
1. The attack on the SADF members at Nkowankowa Stadium, near Tzaneen on 12th April 1990.
2. The unlawful possession of 2 AK-47 rifles, 2 pistols, 12 hand grenades and an unknown quantity
of ammunition.
3. Any other delict or offence flowing from or directly associated with the above incident.
Incident 2
1. The murder of Constable Ngabenziwa Thomas Shinganga on the 15th June 1990 at Nkowakowa Township near Tzaneen.
2. The attempted murder of Lilly Mthembu Shinganga on the 15th June 1990 at Nkowakowa Township near Tzaneen.
3. The unlawful possession of 2 AK-47 rifles and an unknown number of hand grenades.
4. Any other delict or offence flowing from or directly associated with the above incident.
Incident 3
1. The attack on an unknown number of SADF members at Rita Township, Naphuno District in the then Lebowa on 16th June 1990.
2. The unlawful possession of 2 AK-47 rifles and an unknown number of handgrenades.
3. Any other delict or offence flowing from or directly associated with the above incident.
B. Muhlava Muhlava for;
Incident 1
1. The attack on the SADF members at Nkowankowa Stadium, near Tzaneen on 12th April 1990.
2. The unlawful possession of 2 AK-47 rifles, 2 pistols, 12 handgrenades and an unknown quantity of ammunition. 3. Any other delict or offence flowing from or directly associated with the above incident.
C. Stranger Jabulani Mbhalati for:
Incident 2
1. The murder of Constable Ngabenziwa Thomas Shinganga on the 15th June 1990 at Nkowakowa Township near Tzaneen.
2. The attempted murder of Lilly Mthembu Shinganga on the 15th June 1990 at Nkowakowa Township near Tzaneen.
3. The unlawful possession of 2 AK-47 rifles and an unknown number of handgrenades.
4. Any other delict or offence flowing from or directly associated with the above incident.
Incident 3
1. The attack on an unknown number of SADF members at Rita Township, Naphuno District in the then Lebowa on 16th June 1990.
2. The unlawful possession of 2 AK-47 rifles and an unknown number of hand grenades.
3. Any other delict or offence flowing from or directly associated with the above incident.
In respect of incident 3 there was evidence that the first Applicant, John Ngobeni had dropped a hand grenade which he was unable to retrieve when he retreated. It appeared that an unknown civilian had subsequently picked it up and was killed when it exploded. In the absence of a proper investigation into this incident the Committee is not able to come to a conclusion and this incident is referred to the investigative unit for further investigation.
Mnyebezi Florence Shinganga (wife of the deceased) and her children Sibongile Shinganga, Simon Shinganga and John Shinganga as well as Lilly Mtembu Shinganga, sister of the deceased, are declared victims in terms of Section 22 of the Act and referred to the Reparation and Rehabilitation Committee for consideration.
SIGNED on the day of 2000
______JUDGE JOHN MOTATA
______ADV F J BOSMAN
______ADV S SIGODI AC/2000/099
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.
______
MARTHINUS DAVID RAS APPLICANT
(AM 5183/97)
______
DECISION
______
The Applicant applies for amnesty for his part in a conspiracy to murder the occupants of two houses or a motor vehicle used by members or supporters of African National Congress ("ANC"). The first instance was to occur in Bulawayo or Harare, Zimbabwe and the second in Francistown, Botswana. Both conspiracies took place during 1989.
The Applicant testified in support of his application. He confirmed his written application and clarified that he was not persisting with the incident in his application involving the assault of an informer. The Applicant testified that at the time of these instances he was a member of the South African Police's ("SAP") Security Branch ("SB"), based at Vlakplaas. He said that he had discussed both operations with his commander Col. De Kock, whom he believed had approved of them.
With regard to the first conspiracy, the obtained a limpet mine which had been concealed in a motor vehicle battery, from the Technical Division of the SAP at Rebecca Street, Pretoria. He believed that they would have had to obtain authorisation for this. He then instructed an informer, who was based in Zimbabwe and who had provided some of the information about the intended targets, in its use and deployment. After the informer left on the mission, the Applicant never heard anything further in connection with the limpet mine.
With regard to the second instance, he provided another informer, who was based in Botswana and who had provided some of the information about the intended targets, with a firearm and explosives so that he could use it to blow up an ANC house in Francistown, Botswana. He also obtained the firearm and explosives from the Technical Division of the SAP at Rebecca Street, Pretoria. The arms were concealed in a specially constructed secret compartment in a vehicle that the Applicant also provided for the informer. Here, again, he never heard anything further in connection with the informer or the explosives.
The Applicant was the only person to testify before us in the matter and we are satisfied that he has made full disclosure of all relevant facts. As a member of the previous regime's security forces, his actions were directed at members of the ANC a known liberation movement and there can be no doubt that his actions were acts associated with political objectives as contemplated by Section 20 of Act 34 of 1995.
In the result, we are satisfied that the Applicant has complied with the provisions of the Act and amnesty is GRANTED for:
1. Conspiracy to murder the occupants of a house or motor vehicle used by members or supporters of the ANC in Bulawayo or Harare during 1989; 2. Conspiracy to murder the occupants of a house used by members or supporters of the ANC at Francistown, Botswana during 1989;
3. The relevant contravention of Act 75 of 1969 arising from the unlawful possession of a limpet mine, a pistol and the ammunition for such firearm and a quantity of explosives in connection with the above conspiracies.
DATED at this day of 2000
______JUDGE S KHAMPEPE
______MR W MALAN
______MR I LAX AC/2000/100
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 ______
MICHAEL BELLINGAN
(AM2880/96)
______
DECISION
______
INTRODUCTION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The matter relates to three incidents, namely:
(i) the theft during the period 1988 - 1989, in the then Transvaal, of various cheques intended for the National Union of Metalworkers of South Africa ("NUMSA" - the role of this acronym in the incident will appear more fully later in this decision);
(ii) the murder of Applicant's first wife, Janine Bellingan ("the deceased"), during the course of the night on 20 September 1991 or the early hours of the morning on 21 September 1991 in the family home at Sandton, Gauteng;
(iii) the subsequent cover-up of the murder.
These incidents are related to one another but will be dealt with separately for the sake of convenience.
The application was fairly extensive and was strenuously opposed, thus compelling the Committee to hold more than one session to dispose of the matter. A number of witnesses were called to testify and a large volume of documentation was placed before us. The matter also had its fair share of upheaval resulting in changes to the composition of the Applicant's legal team on more than one occasion. All of these matters resulted in inevitable delays in finalising this matter.
The various incidents will now be dealt with separately.
NUMSA THEFT
As part of the normal security police operations at the time, the mail of certain organisations, including NUMSA was intercepted and inspected. In the course of these operations during 1988 - 1989 a number of cheques drawn, in favour of NUMSA< were intercepted. It is common cause that some of these cheques were stolen by members of the security police.
According to Applicant, Major-General Erasmus, then a Brigadier and the then head of the Security Police Intelligence/Stratcom Units, ordered him during 1988 to see if something could be done with the stolen cheques through the assistance of Applicant's contacts in the banking world. Pursuant to this order, Applicant devised a fraudulent scheme to obtain payment of some of these stolen cheques. In execution of this scheme he opened a banking account at Nedbank, Pretoria under a false name, Nicholas Umsa, by using a forged passport and enlisting the assistance of a former colleague at the security branch who was then employed at the bank.
The latter, inter alia, removed the copy of the forged passport from the bank's records in order to obliterate any possible link to Applicant. Applicant deposited a number of the stolen cheques made out in the Union's acronym, NUMSA, at automatic teller machines ("ATM") into the banking account in the fictitious name, Nicholas Umsa of N. UMSA. This enabled Applicant to later withdraw cash amounts from this account, also at ATM's, once the cheques were honoured.
Applicant regarded this as an official and bona fide operation. He utilised the money withdrawn from the N. UMSA account for "operational purposes" and the balance not used was handed to his superiors, Major Derrick Botha and Brigadier Erasmus. He is unable to indicate how much money he defrauded and stole in this fashion and did not account to any superior officer for his application of the money. No books of account or similar financial records were kept in respect of the funds utilised by Applicant.
Major-General Erasmus testified and basically disputed the gravamen of Applicant's version. Erasmus specifically disputed having given Applicant an instruction to deal with the NUMSA cheques or having received any portion of the proceeds of the theft from Applicant. According to his knowledge, cheques intercepted in the post were either destroyed or released once they have served the intelligence gathering, surveillance and other purposes of the security police. He is unaware of any official operation to appropriate the proceeds of intercepted cheques. In his view, it is moreover unlikely that Applicant, who was then employed in the Personnel Development Section would be approached to engage in activities falling within the jurisdiction of the Stratcom Section. He indicated that although it would have been physically possible for Applicant, a former Stratcom member, to have unilaterally and pro-actively engaged himself in Stratcom operations, such conduct would not be authorised and would be visited with disciplinary action.
Erasmus conceded under cross-examination by Mr Lengane, who appeared on behalf of NUMSA, that the reason why no disciplinary action was taken against the Applicant in regard to the theft of the NUMSA funds, could be that Applicant's actions escaped detection by the police authorities. It should be pointed out in this regard that there are indications in an affidavit by Major Charl van der Merwe, submitted by Applicant, that the official postal interception operation, code named WH10, created a substantial risk of abuse by individuals for their personal gain.
Having carefully considered the evidence and arguments in respect of this incident, we are satisfied that the version of Erasmus is truthful in this regard. It has been argued on behalf of Applicant that Erasmus had a motive for lying because he has failed to apply for amnesty in respect of this incident. By confessing to participation in the theft, so the argument runs, Erasmus would expose himself to legal action, hence his mendacious testimony on this issue. This argument is effectively countered by the fact that Erasmus has himself applied for amnesty in respect of a number of incidents.
There is no apparent reason why he would not have included this incident in his application if he were involved in it and it was politically motivated.
Moreover, Erasmus has impressed us as a truthful and credible witness whose evidence we unreservedly accept above that of Applicant.
Applicant's version contains a number of improbabilities. It is extremely unlikely that Applicant, who was no longer a member of the Stratcom Section, would have been approached to execute a Stratcom operation without any control or supervision and without the obligation to report to the superiors in the Stratcom Section. The improbability is accentuated by Applicant's version that the reason why Erasmus approached him to execute the operation was due to a lack of progress on the part of the Stratcom Section member who was ordered to execute the operation. It defies belief that Applicant would under those circumstances simply be left to his own devices without the duty to account or report progress. This singular lack of management and control is unthinkable in an official operation by a department that was subject to strict financial controls.
According to Applicant most of his actions in this regard were pro-active and were taken without any specific authorisation. He was motivated at the time by his patriotic zeal and commitment to the cause of fighting the Marxist political enemy as well as the positive effect which successful action against NUMSA would have had on the morale of the security police. However, in spite of this steadfast commitment, he simply summarily closed the N. UMSA account three months after having opened it without any further ado. He never followed up on this matter nor did he submit any report on the matter.
When asked under cross-examination how he intended accounting for this operation in the absence of any financial records, Applicant contented himself with the fanciful suggestion that he would have given a copy of the bank statements to anyone demanding an account of his dealings with the funds. The patent absurdity of this contention needs no elaboration. A copy of a bank statement would simply be meaningless in accounting for the application of the funds.
In all the circumstances we are not satisfied that the NUMSA operation was an act associated with a political objective as envisaged in the Act.
Moreover, in our view, Applicant's evidence in regard to the alleged authorisation for he theft and the application of the stolen funds, is untruthful. Applicant has accordingly failed to make a full disclosure of all relevant facts in regard to the incident.
In the result, the application for amnesty in respect of the theft of NUMSA funds is REFUSED.
MURDER OF JANINE BELLINGAN AND SUBSEQUENT COVER-UP
A number of witnesses, including the Applicant, testified in respect of these matters. It was common cause that Applicant murdered the deceased in the family home during the course of the night and the early hours of the morning on 20/21 September 1991. This matter was extensively debated at the hearing and every conceivable relevant point fully dealt with. We will only deal with the salient points for the purposes of this decision.
The effect of Applicant's version was that this marriage to the deceased was normal except for some initial problems which they largely managed to resolve. The deceased, however, was never happy with his job as a member of the Security Police. At some later stage in the marriage he realised that the deceased was prying into his official and confidential records, some of which disappeared from his briefcase at home. This was cause for concern and Applicant decided to monitor the telephone conversations of the deceased.
It then transpired from recorded conversations that the deceased was about to leak some of the confidential information, presumably to the African National Congress ("ANC"). At about the same time the deceased consulted a divorce lawyer who insinuated in a discussion with Applicant that unless the Applicant consented to a divorce on the deceased's terms some confidential and damaging information concerning security police activities would be made public. It became clear to Applicant that the deceased was a security risk particularly given the fact that she had gained access to highly confidential material. Applicant discussed the situation concerning the deceased with a senior police officer, Major- General Erasmus, who advised Applicant to manage the problem. Although Applicant managed to temporarily avert a divorce, he was unsuccessful in his attempts to finally resolve the situation.
It came to his attention that the deceased was persisting in her telephone contacts with a representative of the ANC. Matters came to a head during a visit to Pietermaritzburg on police business, when Applicant realised that the deceased finally resolved to actually furnish the confidential information to the ANC. This transpired very clearly from telephonic conversations between Applicant and his sister, Judy White who also testified, as well as with the deceased. it was then that Applicant decided to murder the deceased.
He took a late flight under a pseudonym from Durban to Johannesburg on 20 September 1991 and managed to gain access to the family home without being noticed. He found the deceased asleep in their bedroom and murdered her in her sleep. He managed to recover some of the confidential documents held by the deceased and took the first flight the next morning from Johannesburg to Durban. He was in time to meet his sister, Judy White, in Pietermaritzburg as arranged. The official news of the murder reached the Applicant while he was with his family later in the day. He feigned shock and pretended to be devastated by the news. He returned to Johannesburg where he received the support of his colleagues in the subsequent cover-up of his involvement in the murder which he consistently denied throughout the criminal investigation, inquest and his criminal trial. Applicant was eventually convicted of the murder and is presently serving his sentence of 25 years imprisonment. Applicant's sister, Judy White, purported to corroborate his version in some respects. She confirmed having met Applicant on Saturday morning, 21 September 1991 in Pietermaritzburg as arranged earlier in the week. According to her, the meeting occurred between approximately 09h00 and 09h15, but definitely not later than 09h30. She stuck steadfastly to this version in spite of various challenges under cross-examination and even re-examination. She, moreover, confirmed having had a telephonic conversation with the deceased in the course of the week leading up to the murder. She informed Applicant of this conversation and the deceased's threat to expose the security police. As will appear anon, both of these were contentious issues at the hearing.
The evidence of the remaining witnesses was averse to the Applicant's interests and is important in evaluating Applicant's case.
Major-General Erasmus denied having given Applicant any orders, directly or by necessary implication, to kill the deceased. He confirmed that Applicant and the deceased were experiencing marital problems and that the deceased had contacted him in this regard.
Eunice Mangqawa, Applicant's former domestic worker, basically corroborated the fact that Applicant's marriage was an unhappy one. She confirmed that the deceased was aware of the irregularities concerning the NUMSA cheques and was desirous of divorcing the Applicant. She also saw the Applicant connecting a hidden tape recorder to the telephone.
Jan-Ake Kjelberg, an investigator seconded to the Truth and Reconciliation Commission ("TRC") by the Swedish government, testified in regard to a disputed document, apparently emanating from Applicant, which contained a contradictory version of the murder.
In evaluating the evidence in respect of this incident, we find no basis for seriously criticising or doubting the evidence of Erasmus, Mangqawa or Kjelberg. They have all impressed us as good and honest witnesses who have shown neither any animosity towards Applicant nor any desire or reason to wilfully prejudice Applicant's case. They have made fair concessions in their testimony even where that might have benefited Applicant's case.
We are accordingly satisfied that we can safely rely on their versions in deciding the application for amnesty.
Neither Applicant nor Judy White has made the same favourable impression on us. Applicant in particular, has been a most unimpressive witness. He hardly ever gave any straight or unequivocal answer and often resorted to long and unhelpful debates whenever he perceived a potential difficulty in a particular line of questioning. he left us with a clear impression that he attempted to create as much confusion as possible to divert attention from difficulties or weaknesses exposed in his evidence. We find that his version has been untruthful in a number of respects.
His evidence concerning the existence of the disputed annexure to the amnesty application is clearly false. The version concerning the murder contained in that document is clearly contradictory to the later written version submitted by Applicant which was confirmed in his testimony. The initial case made out on behalf of Applicant was that he is unaware of the origin of this annexure. Applicant later admitted having been the source of the document and even produced a hand-written version of a part of the typed document included in the bundle of papers before us.
In another breath, Applicant points out that a deliberately false version is set out in the annexure because he was uncertain whether he could trust the TRC at the time. In his view, he was also under no duty to tell the truth at that stage of his dealings with the TRC. He wanted to test the waters with the false version and wanted some information back from the TRC. He was also concerned about his own safety and that of his family, therefore he could not make a full and truthful disclosure of all the facts at the time when the annexure was produced.
Applicant failed to deal satisfactorily with the criticism that the only material difference between the two versions concerned the role played by Applicant himself in the execution of the murder. On both versions the same people are implicated in the murder. On the fact of it there was accordingly no attempt to conceal or minimise the role of alleged accomplices. This failure would have exposed Applicant and his family to the alleged threat even on the false version, which therefore did not eliminate the threat. According to the TRC records the first annexure was misplaced at some stage subsequent to Applicant's amnesty Applicant having been lodged with the TRC. This fact was communicated to Applicant who furnished the TRC with the later written version of the murder which contradicted the earlier, misplaced version. The misplaced document was fortuitously located in the TRC offices shortly before the hearing. The contradictory versions were communicated to Applicant with a request to clarify the matter. Applicant failed to clarify the matter and raised the abovementioned explanation in regard to the earlier version for the first time in his evidence before us.
It has been argued in opposition to the application, that Applicant grabbed the opportunity created by the misplacement of the earlier version. to concoct an improved version of the murder, more in line with this case before the Committee. Although there is considerable force in this argument, we regard it as unnecessary for the purposed of this decision to make any final findings on this issue. It suffices to say that we unhesitatingly reject Applicant's version on this issue.
A similar situation arose later in the hearing when Applicant was quite unexpectedly confronted with a document in his handwriting, Exhibit V, apparently giving his father instructions as to how to improve upon certain deficiencies contained in a statement of the latter given to Applicant's attorney. Confronted with the potential deleterious consequences of this document upon his case, Applicant mendaciously maintained that the document was fictitious and a figment of his imagination. He had simply prepared the document as a possible "cover story" and never communicated its contents to anybody, including his father. Again, Applicant's explanation is so far-fetched and improbable that it is clearly untrue. This document is a further indication that Applicant has been engaged in concocting a version in response to the murder charge as he was going along.
It had been objectively demonstrated that Applicant's version in regard to his alleged travel arrangements from Johannesburg to Durban on the morning following the murder, was physically impossible and therefore untrue. Applicant testified that he committed the murder without any assistance from anybody else. After having committed the murder he took the first flight in the morning on 21 September 1991 from Johannesburg to Durban. He thought this was around 06h00. Upon arrival in Durban, he hitched two lifts both from strangers, firstly from the airport to the freeway and from there to Pietermaritzburg. He arrived in time for his 09h00 meeting with Judy White. However, on the undisputed objective evidence, the first available flight that morning departed from Johannesburg at 08h00 and arrived in Durban at 09h00. This would have rendered it physically impossible for Applicant to have arrived in Pietermaritzburg in time for the meeting with Judy White, even assuming that the meeting occurred for the latest at 09h30 as hesitantly conceded by Judy White.
In our view Applicant's version, ostensibly corroborated by Judy White, concerning the telephonic conversation with the deceased a few days before the murder, is a fabrication and an afterthought. The purpose was obviously to justify the timing of the murder an to support Applicant's contention that the urgency of the situation compelled him to take immediate pre-emptive action to avert the serious national threat posed by the imminent action of the deceased. The fact of the matter is, however, that neither Applicant nor Judy White ever mentioned any of these critical telephonic conversations prior to their testimony at the hearing. This was not even referred to in Applicant's written amnesty application which is a detailed and comprehensive document. Applicant has failed to give a satisfactory explanation in this regard.
His evidence is, moreover, contradictory in the sense that he contended simultaneously that the telephonic conversation convinced him that the deceased had resolved to hand the confidential documentation to the ANC, but also that the deceased would not have handed over the documentation until she had spoken to him. This latter contention clearly negates any possible justification for summarily killing the deceased in her sleep without first discussing the matter with her.
Like the Applicant, Judy White has also made an unfavourable impression on us. She was clearly doing her best to assist the Applicant as far as possible. There are various unsatisfactory aspects in her evidence. She struggled to give a satisfactory explanation for her failure to mention her alleged telephonic conversation with the deceased to the police who investigated the murder. She initially testified that in view of the conversation she thought that the deceased would release the confidential documentation immediately. This of course supported Applicant's evidence that the deceased posed an immediate threat. When confronted with this failure to mention the conversation tot he police, she contended that she thought that the deceased was making one her many empty threats.
Her version concerning her reason for buying Applicant an identical pair of shoes to that confiscated by the police in their criminal investigation, is clearly false. Her evidence that it was purely coincidental that within a few days of the murder she unsolicitly bought the Applicant an identical pair of shoes to those connected to the murder, defies belief. Her contention that she had no idea that Applicant would use the second pair of shoes to support his protestations of innocence is patently untrue in all the circumstances of the case. She has clearly consistently endeavoured to support the case made out by the Applicant, often against great odds. This is illustrated, for example, by her insistence at the criminal trial (which was repeated before us), that the Applicant was a keen gardener who maintained a neat garden against the overwhelming evidence of Applicant's neighbour and other persons who had intimate knowledge of the relevant circumstances, that this was never the case.
Another example is her insistence that the Applicant gave her between R500 - R1000 in repayment of a debt, although she never counted the money. All these issues were to a greater or lesser extent contentious ones.
In our view the theft of the NUMSA funds was causally connected to the murder. We are satisfied that Applicant's marriage had broken down and that the deceased had resolved to obtain a divorce. She was aware of the theft and intended using it as a lever to ensure a favourable settlement of the divorce. This situation and the inherent threat to expose Applicant's unauthorised appropriation of the NUMSA funds, prompted him to commit the murder. Applicant's evidence that the deceased was about to expose a confidential report or "list of hits" is a fabrication. Applicant never mentioned the existence of this documentation to any of his superiors. Moreover, his evidence concerning his reasons for preparing the documentation is vague and unconvincing.
On the other hand, there is ample indication that the deceased discussed the issue of the NUMSA theft with a number of people. She never mentioned the existence of the alleged "hit list". We are satisfied that Applicant's principal motive for committing the murder was to silence the deceased and avoid personal exposure for having stolen the NUMSA funds. Applicant never had any orders or authorisation for committing the murder.
We accept the evidence of Major-General Erasmus in this regard that he never gave any orders to the Applicant to kill the deceased.
Moreover, we accept the evidence of Erasmus that there never existed any general authorisation which entitled members of the security police to decide solely within their own discretion whether or not to commit such a radical act, as was contended by Applicant. In our view none of the documentation relied upon and submitted by Applicant in support of his application supports that contention.
Having carefully considered the matter, we are not satisfied that Applicant made a full disclosure of the material issues dealt with in this decision. We are, moreover, not satisfied that the murder constitutes an act associated with a political objective in accordance with the requirements of the Act.
In the circumstances the application is DISMISSED.
SIGNED AT...... THIS.....DAY OF...... 2000
______
JUDGE DENZIL POTGIETER
______
ADV FRANCIS BOSMAN ______
ADV LEAH GCBASHE
AC/2000/101
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.
______
APLA HIGH COMMAND APPLICANT
(AM 7832/97)
Heard in Chambers
______
DECISION
______
This is an application in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995 ("the Act").
The Applicants are the Commanders of the then Azanian People's Liberation Army (APLA), the military wing of the Pan Africanist Congress of Azania (PAC).
These commanders did not specify their individual names as they are accepting collective responsibility for any act, omission, offence or delict committed by members of the PAC as a result of which people died, others were injured and property was damaged (paragraph 9(b) of the application form, Form 1).
In the PAC's submission to the TRC under the heading:
"The nature and particulars of such acts, omission, offences" they state that their objective was "to liberate Azania" (South Africa) because "the country was under illegitimate government at the time".
The Amnesty Committee finds that an act, omission or offence must be subject matter of an application and in the instance no such act, omission or offence had been disclosed, the Applicants did not comply with the requirements of the Act. This would amount to the granting of general amnesty.
The application is similar to the one submitted by members of the ANC, the so-called ANC 27, in which they relied upon a Declaration to support their joint application. In that matter, amnesty was REFUSED.
In this matter the Committee has considered the application and finds that similarly, it does not comply with the requirements of the Act and therefore it fails.
SIGNED at CAPE TOWN this day of 2000
______
______
Furthermore, the application was not signed by anybody acting on behalf of the body who is sighted as Applicant. Section 18 of Act 34 of 1995 states that "any person" who applies for amnesty . No person is mentioned as Applicant.
______
C D DE JAGER A.J. AC/2000/102
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.
______
JEROME JOSEPH MAAKE 1ST APPLICANT
(AM 7756/97)
PIET MOHLAMME MATHEBE 2ND APPLICANT
(AM 5695/97)
CHAKIE EDISON MATHEBE 3RD APPLICANT
(AM 5696/97)
CHARLES DOCTOR MATHEBE 4TH APPLICANT
(AM 5698/97)
______
DECISION
______
Jerome Joseph Maake (the 1st Applicant), Piet Mohlamme Mathebe (the 2nd Applicant, Chakie Edison Mathebe (the 3rd Applicant) and Charles Doctor Mathebe (the 4th Applicant) were all members of the African National Congress (the ANC) and of uMkhonto weSizwe (MK). During 1987 they, together with a person known as Mike, operated together as an MK unit in the Moutse area. The unit was, from time to time, assisted in its operations by an MK cadre known as Johnny. The 1st Applicant was the commander of the unit. He received military training in Angola. The 2nd, 3rd and 4th Applicants were all trained internally by the 1st Applicant. Both Mike and Johnny received their military training out of the country.
The 1st, 2nd and 3rd Applicants apply for amnesty in respect of five incidents which took place during 1987. The 4th Applicant applies for amnesty in respect of one of such incidents. The incidents may be briefly described as follows:
1. The attack on Mr Elias Mmusi (also known as Elvis Mishi) at Saniesloot.
Mr Mmusi was believed to be an informer who assisted the police. It was suspected that he participated in the abduction of one Khala who was an ANC member. It was decided by the unit that Mr Mmusi was a legitimate target who should be attacked. All of the Applicants drove to Mr Mmusi's place of residence at Saniesloot. On arrival, Mr Mmusi was seen standing outside his house. The 1st Applicant, who was armed with an AK-47, fired several shots in the direction of the house. The rifle was in semi-automatic mode. Mr Mmusi ran towards the house and was seen to fall to the ground. The Applicants do not know if Mr Mmusi was injured in the attack.
It is apparent from the documentation before us that Mr Mmusi was in fact injured during the attack, he having received a gullet wound in the leg. Mr Mmusi died during 1998. There is nothing in the documentation to suggest that his death was linked to the aforesaid attack upon him during 1987.
2. The murder of Lieutenant Johannes Petrus Fourie and his son, Sergeant Mark Fourie, at Moteti on 11 September 1987.
The unit received information through reconnaissance that police vehicles were often present at the T- junction of the Dennilton and Marble Hall roads at Moteti. A meeting was held which was attended by 1st, 2nd and 3rd Applicants. It was decided that a police vehicle should be ambushed at the T-junction. None of the said Applicants could recall when such meeting was held, stating that it could have been on the day of the incident itself as even up to a month prior to the incident.
The operation was carried out by the 1st Applicant, the 3rd Applicant, Mike and Johnny. The 3rd Applicant acted as driver. He drove the others to the T-junction and was instructed to wait for them at a specific place some distance away. The 1st Applicant, Mike and Johnny waited at the T-junction. They were all armed with AK-47 rifles which were kept in bags. Other people were also waiting at the T-junction which was a place where taxis stopped.
After approximately 30 minutes a car stopped at the T-junction. They recognised it to be a police car by its registration number and the fact that it had a blue light on the roof. Johnny produced his rifle and fired at the vehicle. The 1st Applicant and Mike provided cover fire. Several shots were fired. Both Lt. Fourie and Sgt Fourie, who were the only occupants in the car, were killed in the shooting.
The 3rd Applicant, upon hearing the firing of shots, decided to go and pick up the others rather than wait for them to come to him. He did so and they departed from the scene.
At the time of the shooting none of the unit members knew the identity of the policemen they were shooting at. They only learnt after the event from press reports that Lt. Fourie and Sgt. Fourie were their victims.
Lt. Fourie was a member of the KwaNdebele police. He was the commanding officer of the watch unit at Dennilton. Sgt Fourie was a member of the South African Police and worked at the police college in Pretoria. At the time of his death he was visiting his parents for the weekend. Lt Fourie had gone to the T- junction at Moteti to meet a colleague, Warrant Officer Kekane, to assist him in an investigation. Sgt Fourie had gone with his father to keep him company.
The 4th Applicant was not in any way involved in this incident.
3. The attack on the Dennilton Police Station.
It was decided by the unit to launch an attack on the Dennilton Police Station. On a Friday night during 1987 the 1st Applicant, 3rd Applicant, Mike and Johnny proceeded to the police station. They arrived there at approximately 20h00. The 3rd Applicant, who was the driver of the vehicle which transported them there, dropped the others off near the police station and then took the vehicle to a pre-arranged spot to await their return.
The 1st Applicant, Mike and Johnny, who were armed with AK-47 rifles, hid themselves and watched the police station. They noticed that civilians were present. They waited until the early hours of the morning when the station was only occupied by policemen. They went to the fence at the perimeter of the premises and from there fired randomly at the building.
Policemen in the building returned fire. The 1st Applicant and his two comrades then ran to the vehicle in which the 3rd Applicant was waiting for them. They got to the vehicle without incident and drove away.
The two policemen, Freddy Sepogwane and Ferry Motloung were injured in the attack. 4. The planting of a limpet mine at the Moutse Magistrates' Court, Sempururu.
After reconnaissance work had been done by the 1st Applicant at the Moutse Magistrates' Court, he, together with the 3rd Applicant proceeded there and planted a limpet mine in the building. The mine was planted on a Friday afternoon and set to explode after working hours. However, the detonating mechanism was defective and the mine never exploded as planned. On the following Monday morning the 3rd Applicant anonymously telephoned the police and advised them of the mine. This was done as they did not want the mine to explode and injure civilians. The mine was then defused by the police.
The 2nd Applicant was involved in the planning of this operation.
5. The planting of explosive material at the Kwaggafontein Police Station.
A booby trap was made by placing explosives in a large three-legged cooking pot. A stick with a flag on it protruded from the lid and a message to the effect that MK is operating in the area was attached to the pot. If the stick to which the flag was attached was pulled it would detonate the explosives in the pot. The pot was then taken to and placed next to the Kwaggafontein police station. The 1st, 2nd and 3rd Applicants were present when the pot was placed in position.
It is not known whether an explosion occurred.
We, after careful consideration of the evidence before us, are satisfied that the offences committed by the Applicants were acts associated with a political objective as contemplated by the provisions of Section 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995 ("the Act"). There was, at the time in question, political conflict in the Moutse area.
We accept the evidence of the 1st Applicant that when he infiltrated back into the country in 1986 after having attended a refresher training course in Angola, it was with the object of forming a unit to operate in Moutse. Members of the police force, informers, police stations and Magistrates' courts were regarded by MK operatives as being legitimate targets.
Save for Elias Mmusi, who the Applicants believed to be a police informer, all the victims of their attacks were policemen whose identities they did not know at the times of the attacks. There is nothing in the evidence to suggest that the attacks carried out by them were motivated by personal malice, ill-will or spite or were carried out for personal gain. On the contrary, the only reasonable conclusion that can be arrived at on the evidence before us is that the attacks were carried out bona fide in furtherance of the political struggle waged by the ANC against the State. The evidence of the 1st Applicant that he reported all the operations to his superiors in Lusaka some months later is corroborated by the fact that both the attacks on the Dennilton police station and the attack on Lt Fourie and his son, Sgt Fourie, are reflected as MK operations by the ANC in its submissions made to the Truth and Reconciliation Commission on 12 May 1997.
We are also satisfied that the Applicants have made a full disclosure of all relevant facts pertaining to their aforementioned operations. The 1st, 3rd and 4th Applicants all gave their evidence in a satisfactory manner. The evidence given by the 2nd Applicant was not entirely satisfactory. He testified before the Human Rights Violations Committee of the TRC on 2nd December 1996. It is apparent from the transcript of his testimony that he played down his knowledge of the role played by MK in Moutse during 1987 and thereafter and also that he was not open and frank to that Committee about the Fourie incident. His explanation made to us about these discrepancies was unimpressive. We accordingly approached his evidence in this matter and are, despite this unsatisfactory feature of his evidence, satisfied that he has made a full disclosure of the role played by him in all the incidents.
In the result, all the applications succeed and:
1. Jerome Joseph Maake is GRANTED amnesty in respect of:
a) the attempted murder of Elias Mmusi (also known as Elvis Mishi) at Saniesloot during 1987; b) the murder of Johannes Petrus Fourie and Mark Fourie at or near Moteti on or about 11 September 1987;
c) the attack upon the Dennilton police station and the attempted murder of Freddy Sepogwane and Jerry Motloung during 1987;
d) the placing of a limpet mine at the Moutse Magistrates' Court, Sempururu, during 1987;
e) the placing of explosive material at the Kwaggafontein Police Station during 1987.
2. Piet Mohlamme Mathebe is GRANTED amnesty in respect of:
a) the attempted murder of Elias Mmusi (also known as Elvis Mishi) at Saniesloot during 1987;
b) the murder of Johannes Petrus Fourie and Mark Fourie at or near Moteti on or about 11 September 1987;
c) the attack upon the Dennilton police station and the attempted murder of Freddy Sepogwane and Jerry Motloung during 1987;
d) the placing of a limpet mine at the Moutse Magistrates' Court, Sempururu, during 1987;
e) the placing of an explosive device at the Kwaggafontein Police Station during 1987.
3. Chakie Joseph Mathebe is GRANTED amnesty in respect of:
a) the attempted murder of Elias Mmusi (also known as Elvis Mishi) at Saniesloot during 1987;
b) the murder of Johannes Petrus Fourie and Mark Fourie at or near Moteti on or about 11 September 1987;
c) the attack upon the Dennilton police station and the attempted murder of Freddy Sepogwane and Jerry Motloung during 1987;
d) the placing of a limpet mine at the Moutse Magistrates' Court, Sempururu, during 1987;
e) the placing of an explosive device at the Kwaggafontein Police Station during 1987.
4. Charles Doctor Mathebe is GRANTED amnesty in respect of the attempted murder of Elias Mmusi (also known as Elvis Mishi) at or near Saniesloot during 1987.
We are of the opinion that Mrs Anna Johanna Willers (previously Fourie), Mrs Jacci Cathy Peter (nee Fourie), Mr Paul Hannes Fourie, Mr Freddy Spogwane and Mr Jerry Motloung are victims and this matter is referred to the Committee on Reparations and Rehabilitation for its consideration in terms of the provisions of the Act.
SIGNED at CAPE TOWN this day of 2000
______JUDGE S MILLER
______ADV N SANDI
______MR W MALAN
AC/2000/103
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.
______
BONGANI SYDNEY DUNYWA APPLICANT
(AM 7623/97)
______
DECISION
______The Applicant is seeking amnesty for the murder of Nyani Xolo ("the deceased") which crime was committed on the 26 October 1990 at Thelawayeka Ward, Paddock, in the region of KwaZulu-Natal ("KZN"). At the relevant time the KZN region was engulfed in violent conflict between the supporters of the ANC and IFP. He was a resident at Paddock where he was actively involved in student affairs under the banner of the Congress of South African Students ("COSAS").
The Applicant was the only witness to testify in support of his application and although the father of the deceased was present at the hearing, he did not want to testify. He said for some time now he had been trying to forget and accept the tragic death of his son. Giving evidence in the matter would frustrate his endeavours in that direction. However, he put his own version of the events through the legal representative, Mr Panday. Briefly, he denied that the deceased was a member of a criminal gang as alleged by the Applicant.
The Applicant testified that at the time they were having clashes with IFP members and gangsters who harassed and terrorised ANC supporters. They believed that the police were acting in cohorts with their adversaries. They had received this information from confidential sources within the police force. At that stage the deceased was still working in the mines but when he returned he joined the gangsters.
A meeting was held by ANC comrades to discuss the problem. The Applicant chaired the meeting and it was resolved that the deceased and his compatriots should be killed because they were making life unbearable for ANC supporters. They were also making it difficult for the Applicant and other ANC supporters to mobilise for support in the area. The Applicant says he joined the operation because he, as chairperson of the meeting, wanted to ensure that the order would be carried out. The deceased was going to be lured and killed.
On the day in question one comrade Don Gumede came to see the Applicant. At that stage Gumede had already suggested to the deceased that they go out for a drink. Gumede was going to fetch him. When Gumede came to the Applicant and told him that he had spoken with the deceased, the Applicant suggested to him that they involve one Thulani, also an ANC supporter. Then, as already planned, Gumede went to fetch the deceased at his home. They proceeded to the place where they were going to partake of liquor together. Whilst they were walking together the Applicant and Thulani followed them, the latter two both armed. The Applicant had a panga in his possession. At a certain point they attacked the deceased and killed him.
It appears from a copy of the criminal court judgment on sentence that the Applicant gave the same account as presently testified to. He was convicted and sentenced to long term imprisonment, which he has now served. His legal representation was arranged by the Port Shepstone ANC Branch. At the hearing a letter from Silochini Pillay and Associates was handed up. It confirms that the firm obtained instructions from the said ANC branch to represent the application at the trial. After considering the matter we are satisfied that the Applicant has complied with the requirements of the Act. He has shown that the matter is "an act associated with a political objective" in terms of the Act and further appears to have given a full disclosure of the relevant facts. His application therefore succeeds and he is accordingly GRANTED amnesty for the murder of the deceased.
The dependants of the deceased are hereby being referred to the Reparations and Rehabilitation Committee to be declared victims in terms of the Act.
DATED at CAPE TOWN this day of 2000
______
JUDGE A WILSON
______
A/ J D POTGIETER S.C.
______
ADV NTSIKI SANDI AC/2000/104
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.
______
HAPPY AUBREY MNGOMEZULU 1ST APPLICANT
(AM 7322/97)
THULANI CHRISTOPHER MADLALA 2ND APPLICANT
(AM 5993/97)
______
DECISION
______
The applications for amnesty arise out of the killing of Mr Mpumelelo Christopher Phewa on or about the 25th March 1994 at Wembezi in Natal.
The Applicants were members of the ANC in Wembezi which was under the leadership of one Teaspoon Mkhize. At the beginning of 1994, the ANC group under the leadership of Bheki Msimango broke away from the ANC in the area and joined the SACP. This caused a lot of political tension in the area as both organisations fought each other for political control over the area resulting in attacks being launched by one organisation against the other. The conflict was such that whenever members of these organisations met they would attack one another giving rise to an eye for an eye situation.
In this regard the first Applicant described the situation as follows:
"Whenever or wherever we met them, there was nothing else that we would do except killing one another".
The SACP members in the area voiced their displeasure at the way Mr Mkhize was running the affairs of the community and alleged that he was embezzling communal funds, allegations which did not auger well with the ANC group. These allegations led to the resignation of Mr Mkhize, a factor which only served to exacerbate the conflict between these two organisations.
The attacks by and counter attacks against these organisations continued unabated to the extent that mediatory meetings aimed at diffusing the conflict were convened by the national leadership of both the ANC and the SACP which were presided over by inter alia the late Harry Gwala and Blade Mzimande but to no avail.
It is against this background that the killing of Mr Phewa was committed by the Applicants.
The Applicants testified that although there was an alliance between the ANC and the SACP, a peculiar situation of hostility and conflict existed at Wembezi giving rise to a battle being waged by one organisation against the other for political control.
On the 25th March 1994 at Wembezi Taxi rank, the first Applicant fired several shots at the deceased using a 7.65 pistol which had been issued to him by the local ANC leadership for use during the conflict in the area. The second Applicant also fired several shots at the deceased whilst he was lying on the ground after having been shot by the first Applicant. He also used a firearm which had been issued to him by the local ANC leadership.
Having considered all the evidence before us, we are satisfied that the applications meet the requirements of Section 20(1) of the Act.
It is quite evident from facts stated above that this was an extraordinary conflict where members of the ANC and SACP at Wembezi were in a political struggle against each other for political power in the local structures. That was the factual position notwithstanding the fact that the two parties at a national level had formed a political alliance. The animosity and kills, however, were politically motivated and were associated with a political objective to gain political turf for their respective organisations.
In the premises, application is GRANTED to both Applicants in respect of the following offences:
1. The murder of Mpumelelo Christopher Phewa;
2. Unlawful possession of firearms;
3. Unlawful possession of ammunition; and
4. Any other competent or related verdict based on the same facts and which would relate to the same offences for which amnesty has been granted.
The Committee is of the opinion that the next-of-kin of the abovementioned deceased are victims in terms of the Act and hereby refer the matter to the Committee on Reparation and Rehabiliation for consideration as envisaged by the Act.
DATED at CAPE TOWN this day of 2000
______SISI KHAMPEPE (A.J.)
______CHRIS DE JAGER (A.J.)
______MR W MALAN AC/2000/105
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.
______
DERRICK JAN VISSER 1ST APPLICANT
(AM 5000/97)
CHRISTO PETRO DEETLEFS 2ND APPLICANT
(AM 5001/97)
FREDERICK JOHANNES PIENAAR 3RD APPLICANT
(AM 5014/97)
JAMES EMIEL WILHELM VAN ZWEEL 4TH APPLICANT
(AM 5017/97)
______
DECISION
______
These are applications for amnesty for the abduction, intimidation and unlawful detention of Christopher Mosiane; Tebogo, James and Bhuye. Full names and whereabouts of the latter are unknown.
The incident occurred in Swaziland in 1984 April 14th. At the time in question the Applicants were based at Piet Retief and worked for the South African Security Police "SASP"). The victims were members of uMkhonto weSizwe ("MK"), the military wing of the African National Congress ("ANC").
At the hearing the Applicants were the only witnesses to testify in support of their applications and although Mosiane was in attendance he did not tender a testimony. His counsel, Mr Richard, stated from the bar that he was not opposing the applications and agreed with the account given by the Applicants. He also accepted that the Applicants had acted with a political objective and had given a full disclosure.
The essential facts and evidence in the matter can be summarised as follows:
Mosiane and his compatriots were members of an MK "Special Operations" Unit in Swaziland. Deetlefs received information that four (4) MK members had been arrested in Swaziland. He contacted Visser who was of the opinion that the cadres should be secured and interrogated by the SASP. At that stage they were already aware that the ANC armed wing was planning large scale operations in the Republic of South Africa (RSA), and it was necessary to pre-empt such MK actions from taking place. Visser accordingly gave an order for their abduction and subsequently all the Applicants met at Nelston near the Swaziland border. They were preparing to enter the country and late that night they proceeded to where Mosiane and company were being held. This was at a small police station near the border of the RSA and Swaziland. On arrival there the Applicants found that there was only one policeman on duty. Without using any force they persuaded him to hand over the suspects. neither had a threat been made to secure the policeman's co-operation. The suspects were then bundled into one of the two vehicles the Applicants had used for the operation and leg-ironed them to prevent them from escaping. They were told to co-operate otherwise they would be killed and dropped on the side of the road. It is clear that the cadres were very much scared of being killed. They co-operated.
The Applicants then proceeded with the captives into the RSA. Although when the Applicants came into Swaziland they had come through the border post, on return they entered RSA through the forest by cutting an opening into the fence. The suspects were held at Piet Retief where they were detained in terms of Section 29 of the Internal Security Act. Through their co-operation large caches of arms were retrieved from Dead Letter Boxes. Acts of insurrection which had already been planned by MK were prevented.
When it became clear that Mosiane and his compatriots had decided to co-operate with the police, they were transferred to Vlakplaas where they worked with Eugene de Kock. There they were subsequently involved with the notorious Vlakplaas Security Police Unit in a number of actions to counter the activities of liberation movements.
After considering the evidence we are satisfied that the incident occurred as the result of the conflicts of the past. There is no doubt that the Applicants have made a full disclosure of the relevant facts, and have complied with the administrative requirements of the Act.
Amnesty is therefore GRANTED to all the Applicants for the following crimes and offences:-
1. The abduction, unlawful detention and intimidation of:
Christopher Mosiane,
Tebogo,
James and Bhuye;
2. leaving Swaziland and entering RSA illegally; and
3. For any offence or delict flowing from the incident.
It is recommended that the victims be declared victims in terms of the Act.
DATED at CAPE TOWN this day of 2000
______
ACTING JUDGE J MOTATA
______
MR W MALAN
______
ADV N SANDI AC/2000/106
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.
______
PATRICK THAPELO MASEKO APPLICANT
(AM 5918/97)
______DECISION
______
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995 ("the Act"). The Applicant is seeking amnesty for acts or omissions committed on 18th February 1993 at the University of the Transkei (UNITRA), in Umtata, including, inter alia, the following:
1. The killing of Mason Mlindeli Mankumba;
2. The shooting of the following persons:
2.1 Wilberforce Sandla Mkizwayo;
2.2 Elliot Michael Pama;
3. The robbery of R500 000.
At the time of the incident, the Applicant was a member of the Pan African Congress (PAC) military wing, the Azanian Peoples Liberation Army (APLA). By way of background, the Applicant left the country in 1986 and received military and ideological training in Tanzania and other front-line states.
In 1989 he was sent back to South Africa by the PAC on operational duties. He was later called back to Tanzania and was instructed to lead a new unit to be based in the Transkei termed the "Repossession Unit", and code named "Beauty Salon". The unit was directed at robbing government institutions, businesses and White farmers to finance APLA operations. APLA had no funds at the time and his superiors in Tanzania decided that robberies were the only means to secure arms and money for its activities. All items of value such as arms, jewellery and money were to be handed over to him to one "Mandla Lenin", now deceased, the Regional Administrator at the PAC/APLA offices in Umtata.
The Applicant was the overall commander of this unit. He assembled sub-units which carried out specific operations and who handed to him all proceeds of such operations. He reported to Letlapa Mphahele, the APLA director of operations and a member of its high command, from whom he also took orders. The Applicant chose the targets on his own and reported after each mission had been carried out.
The Applicant arises out of an incident on 18th February at UNITRA where the Applicant, in concert with other members of APLA, planned and executed a robbery at the University. On that day, the university was busy with the registration of students and a large sum of money had been collected. At the time of the robbery which was late in the afternoon, UNITRA staff members were busy counting the money at the auditorium ("the hall").
Mason Mlindeli Mankuma (Mankumba) and other unnamed person were security guards on duty at the university at the time. Constables Elliot Michael Pama (Pama), Wilberforce Sandla Mkizwayo (Mkizwayo) and Mxokozeli (Mxokozeli) were policemen who had just arrived to assist with security and to relieve a group who had worked earlier in the day. There is some confusion with regard to how many policemen were present and exactly who they were. Mankumba was fatally injured and Pama and Mkizwayo were seriously injured when the robbers opened fire. Others who were present in the hall had firearms pointed at them and were forced to lie down whilst the amount of R500 000 was being taken away.
The Applicant did not play a direct role in the robbery but stood outside the hall whilst his colleagues executed it. The Applicant who is serving a long term of imprisonment in respect of other offences, has never been charged for this incident. None of the participants were arrested for the incident.
At the hearing, he was the only witness to testify in support of his application. Although he has applied for amnesty for a number of other crimes, ranging from murder to robbery which he claims were carried out on behalf of APLA< those were not the subject of this hearing which only dealt with the so-called "UNITRA" incident". Some were, at the time of the hearing of this matter, to be heard by other panels and other matters will be dealt with in chambers, that is, where no gross human rights violations were committed.
We now return to the facts of this incident. Before the robbery was launched, the Applicant gathered the necessary information about the place, using a female APLA cadre, "Nolita". He does not know her full names or present whereabouts. This also applies to other cadres involved. On the day in question he acted with "Jomo" from Mdantsane, "K.G." from Clarkebury, "Skhembe", "Hasper", "D.K.", "Laizer" and "MZI". They divided themselves into three groups, namely the "assault group" which was to penetrate the hall and execute the action, the "support group" which was to ensure a safe withdrawal of the first group and the "cut out group" of which he was a member. This group had to stand outside the hall and prevent any interference with the robbery.
Each group had its own commander and had to give a report to the Applicant on completion of the mission. All the other members of the three different groups were armed with firearms and he was the only one armed with only a knife. He says APLA generally did not have sufficient arms for each cadre. He added that he was not supposed to be there that day. He only participated to give the others moral support. We should state here that the Applicant was thoroughly cross-examined on his reason for not taking an active part in the execution of the mission and as nothing turns on this issue, we shall take it no further.
Whilst he was standing outside he heard gunfire from inside. A policeman came out of the hall and fired at him. He sustained an injury on the right leg and he ran towards the university hostels for help. There he met a woman whom he told that had he been innocently walking past the hall when the shooting started. She dressed his wound. Because the getaway car was parked some distance away, he took a taxi and proceeded to the agreed rendezvous. His comrades did not arrive there.
The next day they came to see him with the stolen money. He did not count the money at that stage. He only did so with Mandla Lenin when he was handing it over to him. He did not see what happened inside the hall and all he knows is what was told to him by the commanders of the other two groups that went inside. They told him that the police started the shooting. It was a standing rule in APLA that if a target draws a firearm, one must shoot immediately and not wait to be killed.
At the hearing, none of the university employees from whom the money was taken testified. It appears from their statements which were made to the police and which were handed in at the hearing, that whilst they were busy counting the money three men came into the room. They pointed firearms at them and ordered that they lie down, which they did. Police and university security guards were guarding them. The robbers took the money away in suitcases.
Pama testified that on the day in question he and two other members of the Transkei Police Force (TPF) were posted at UNITRA to render protection and security whilst money was being counted and carried from the hall. The two others were Mkizwayo and Mxokozeli. When they arrived at the hall, they met two UNITRA security guards, one of whom was Mankumba. They were late in arriving to relieve other TPF members who had been there on duty before they came. There were other people around who appeared to be students and university employees.
One of the outgoing police told them to ask the UNITRA security guards where the money was being counted, which they did and were shown a small room inside the hall. Whilst talking to one of the security guards he saw about three to four men entering the hall. (It later transpired that those were the APLA members who arrived in the company of the Applicant who was standing outside). One of them had a newspaper in his hand and this reinforced his conclusion that they were students who had come to register. They had entered through the same door Pama and his colleagues had used when they came in. They were walking slowly and caused no suspicion to him. Whilst observing these people they were at some stage obscured by a pillar as they went up the stairs inside the hall. Someone appeared next to him and opened fire. Pama says he was shot on the left side of his chest. He fell to the found with his gun falling next to him. He shouted for help but Mkizwayo had also been shot. They were rushed to hospital.
Pama says when he and his colleagues arrived at the hall they were all dressed in civilian clothes and their guns were under their jerseys and jackets. he does not know how they were singled out as policemen. The security guards were in green uniforms and did not have their guns exposed to members of the public as they were carried under their jackets. The attackers gave no indication or warning that they were going to shoot. It all happened very quickly and came as a complete surprise to everyone. The first shot hit Mankumba and the second one him. There were about ten people inside the hall when this happened and a lady who was sitting on the stairs. Pama says it was the first time that he had been posted for duty at UNITRA. he had never been there before. He had a 9mm pistol, a standard police issue Z88 parabellum but he did not use it.
Mkizwayo also testified and his evidence partly corroborated Pama but he added the following. On his arrival at the hall he suggested to one of the security guards that two of the three doors be closed, apparently to ensure tighter security. The suggestion was agreed to and he was told to do it himself. As he was about to do so and was about five paces from the door, he heard gun shots being fired. At that stage he was jumping over a chair on his way towards one of the doors. On turning around to determine where the shots were coming from and also trying to draw his own gun, he felt pains on the waist. He says it was like a "doctor's injection" on his right leg. he had been shot, apparently by a man wearing a khaki cap, a khaki overcoat and a striped pair of trousers. He tried to return fire but as a result of his state of confusion and the shock he was in, he fired in the air. A second shot followed and he became unconscious. On regaining consciousness, he saw Pama and Mankumba who were lying on their backs. They appeared to have been shot. He had not seen any one of his colleagues being shot and neither had he seen any person carrying a firearm before he was shot. He heard no verbal warning or warning shots before he was shot. He did not see any of his colleagues or the security guards firing shots at the attackers. He had taken no particular notice of the attackers amongst the people who were going up and down in the hall.
The Applicant was not inside the hall when the shooting occurred and could not give evidence as to what happened there. What he had been told by others is clearly hearsay. Suffice to say, that the Applicant says he takes full responsibility for the actions of his comrades. He said that UNITRA was targeted and classified as an enemy institution because it was oppressing the African people. He did not say how and he was not asked to explain himself. The assertion has also not been challenged.
UNITRA was a State institution and was part of the then Transkei homeland structure which in turn formed part of the broader apartheid edifice.
There appears to be some differences between the versions of the policemen who testified and the witness statements that were contained in the docket and handed in at the hearing. It is clear to us that such differences are probably the result of the lapse of time since the incident and the shock and confusion that the witnesses suffered at the time. Not much turns on such differences in any event.
After considering all available evidence in this matter, as well as the PAC's submission to the TRC, where it confirmed that robberies were part of its manner of waging the struggle against the previous government, we are of the view that the acts and omissions committed fall within the purview of the Act. At that special hearing a member of the PAC delegation alludes to the names of the Applicant as a person who was charged with the task of commanding the Beauty Salon Unit's operations. As stated earlier, he was never charged with his incident and has voluntarily exposed his involvement. Although there may be some doubt as to what actually happened in the hall, the Applicant has accepted responsibility for the incident. We are satisfied that in sending in his cadres, armed as they were, to carry out the robbery, he foresaw or must have foreseen the possibility of a shooting taking place. He, in any event, associates himself with the shootings. In the result we are satisfied that the Applicant has made full disclosure of all relevant facts and that his actions were acts associated with a political objective.
Amnesty is accordingly GRANTED for all offences and delicts arising from the robbery on 18th February 1993 at UNITRA, in Umtata.
The Amnesty Committee is of the opinion that the following persons are victims and are accordingly referred to the Committee on Reparation and Rehabilitation for its consideration in terms of Section 26 of the Act:
1. The relatives and dependants of the late Mason Mlindeli Mankumba;
2. Wilberforce Sandla Mkizwayo;
3. Elliot Michael Pama.
DATED at CAPE TOWN this day of 2000
______JUDGE A WILSON
______ADV N SANDI
______ADV L GCABASHE
______MR I LAX AC/2000/107
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.
______
SAMPINA HENDRICK BOKABA APPLICANT
(AM 5460/97)
______DECISION
______
This is an application for the abduction and murder of Andrew Mokupe, Jackson Maake and Harold Sefola. In this matter amnesty was previously granted to Jacques Hechter(AM 2776/96) and Paul Jacobus Jansen van Vuuren (AM 2777/96), a separate panel of the Committee on amnesty having been satisfied that the two (2) Applicants' applications complied with the requirements of the Act.
Without much ado, it is necessary to point out that at the relevant time Bokaba was a junior officer Security Forces who simply carried out orders from his superiors, namely Hechter and Van Vuuren. It was not within his powers and duties to disobey such orders.
At the hearing the Applicant was the only witness to tender evidence in support of his application and although the next- of-kin of the deceased were in attendance, they did not give any countervailing evidence to contradict or oppose the evidence. Neither were submissions made by Mr Eric van den Bergh who represented the victims. He conceded that there was no basis to oppose the application. However, he stressed the desire of the families to know where exactly the deceased were killed so they could possibly retrieve the remains of their bodies and perform traditional rituals.
The Applicant's evidence, briefly states, is as follows:
At the time of the occurrence of the incident the Applicant, Hechter, Van Vuuren, Warrant Officer Van Wyk, Sergeant Joe Mamasela and Constable Selahle who were all members of the South African Security Police (SASP), operated in the Mamelodi area. They were gathering information on African National Congress (ANC) activists and their actions. In 1986 Van Wyk and the Applicant successfully recruited Jackson Maake to work as their informer. At the time Maake who was an ANC supporter had been arrested with other youth activists. At first all went very well with Maake as an informer until Van Wyk was transferred to KwaZulu-Natal when he handed him to Hechter and Van Vuuren who were to continue to use him as an informer. The Applicant's contact with Maake thus came to an end and he had no dealings with him.
Later the Applicant was told by Hechter and Van Vuuren that Maake had been sent to Botswana to infiltrate the ANC. On a certain day and whilst the Applicant was at Mamelodi, he was called by Van Vuuren to come and see Maake in their offices. At that stage Maake had returned from Botswana and when he came to their offices he found him in the company of Van Vuuren. The Applicant simply greeted Maake and did not engage in any conversation with him. He did not again see him at their offices.
Then subsequently on a certain day the Applicant was called to a certain place by Hechter. He found him with Maake, Van Vuuren, Mamasela and Selahle. They were in a Blue Ford Husky kombi. Its windows were tinted and Selahle was the driver. The Applicant is unable to remember the exact date and place where they all met. Hechter gave the Applicant an instruction to ascertain the whereabouts of Andrew Mokupe. He was to observe his movements near his mortuary and report to him immediately he saw him. He was not told why Mokupe was being looked for. The Applicant complied and whilst he was still searing for Mokupe he was radio contacted and informed by Van Vuuren that the latter had been found. He had been arrested at Mamelodi East. The next order (from Van Vuuren this time) was for him to go to Pienaars Rivier where he found his aforementioned colleagues.
They were in the company of Maake and Mokupe who both appeared to have been arrested. Mokupe's vehicle was being driven by Mamasela. There they went into a disused farm which had a hut. The two (2) suspects were handcuffed and put in the hut. No blankets were provided and Hechter, Van Vuuren and Mamasela left the Applicant and Selahle there to watch the suspects for the whole night.
The next morning Hechter and company returned and the Applicant and Selahle were then given a chance to go home to change and refresh. They were leaving the suspects with their colleagues, presumably to question them. On their return in the afternoon, he observed that Mokupe's hands were swollen and Hechter instructed that they take him to a public telephone where he would call his friend, Harold Sefola. Hechter's plan was to force Mokupe to say to Sefola that some ANC comrades were coming to his house and that he should not panic. They were coming to fetch him. The next stage of plan was for Mamasela and Selahle go and abduct Sefola who, on the basis of what he had been informed, would have been waiting for "ANC comrades". They were using Mokupe's vehicle to fetch Sefola.
All went as planned and having so abducted Sefola in Witbank they brought him to the farm where Maake and Mokupe were being held and tied with ropes to prevent them from escaping. Then the three (3) suspects were questioned about the ANC. They were being questioned by Hechter, Van Vuuren and Mamasela. They admitted being ANC members and that they had received military training under its auspices. They were electric-shocked with a generator and wires. They died one by one. The Applicant and Selahle did not participate in the questioning and torture and stood by whilst it was taking place.
When they had all died, Hechter went back to their offices in Pretoria where he fetched a land mine and on his return they were all (including Van Vuuren and Mamasela) ordered by Hechter to load the corpses into the kombi. Their bodies were covered and taken to some point on the way to Bophuthatswana where they were blown up. As it was at night he does not know the real location of the place and would not be of much help to the families of the deceased. The Applicant says they all observed silence about the incident and never revealed it to anyone. Not even to the most senior officers in the police force. He says although he did not play a leading role in the operation, it was necessary to combat insurrection and prevent police use of unlawful methods against freedom fighters from being known.
In cross-examination the following emerged from the Applicant. He had no personal knowledge of Maake having left for Botswana and all the information he had in this regard was what was told to him by Hechter. At no stage did he deal with Maake alone and during the time he was handled by Van Wyk he was a co-handler. After the incident he heard rumours that Maake had lied to Hechter and that he did not go to Botswana. For this reason he was suspected of being a double agent who had infiltrated the police to monitor their activities on behalf of the ANC. At the previous hearing Hechter and Van Vuuren testified that Maake was supplied with a Ford Cortina Station Wagon to enable him to carry out his tasks as an informer. They had also covertly arranged for him to obtain a licence through a contact amongst traffic officers.
The mother of Maake, Shoke Martha Maake, through the legal representative denied that her son was an informer and that he had a vehicle. She maintains that Maake who was 18 years old at the time could not even drive. In this context the Applicant testified that he had never seen him driving a vehicle. He had not even heard a rumour to that effect.
After considering the evidence as a whole we are satisfied that the Applicant acted in obedience to superior orders. There is also no doubt that the incident occurred as the result of the conflicts of the past. He has complied with the requirements of the Act and, further, appears to have given a full disclosure of the relevant facts.
Amnesty is therefore GRANTED for the following offences:
1. The abduction and murder of the deceased;
2. Violating dead bodies; and 3. For any offence or delict emanating from the incident.
It is recommended that the next-of-kin of the deceased be declared victims in terms of the Act and are accordingly referred to the Reparations and Rehabilitation Committee.
SIGNED ON THE day of 2000
______ACTING JUDGE J MOTATA
______ADV N SANDI
______MR W MALAN AC/2000/108
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.
______
ADRIAAN JOHANNES VLOK 1ST APPLICANT
(AM 4399/96)
JOHANNES VELDE VAN DER MERWE 2ND APPLICANT
(AM 4157/96)
PETRUS LODEWIKUS DU TOIT 3RD APPLICANT
(AM 4131/96)
MATHYS CORNELIUS BOTHA 4TH APPLICANT
(AM 7560/96)
JOHAN HENDRIK LE ROUX 5TH APPLICANT
(AM 4148/96)
JOHANNES ALBERTUS STEYN 6TH APPLICANT
(AM 4513/96)
CORNELIUS STEPHANUS HEYNEKE 7TH APPLICANT
(AM 4144/96)
JOHANNES CAREL WILLEM KASPARUS LOUW
(AM 4150/96) 8TH APPLICANT
ABRAHAM CHRISTOFFEL KENDALL 9TH APPLICANT
(AM 3757/96)
ANDRIES JOHANNES VAN HEERDEN 10TH APPLICANT
(AM 3763/96)
CHARLES ALFRED ZEELIE 11TH APPLICANT
(AM 3751/96)
______DECISION
______This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995 ("the Act").
The Applicants, who are for convenience sake referred to by their surnames, apply for amnesty in respect of the following incidents:
The damaging by explosives, the placing of explosives and dummy explosive devices and making bomb scares at cinema theatres during or about July 1988 to prevent the film "Cry Freedom" from being screened as well as any act, omission, offence or delict perpetrated by them in respect thereof subsequent to the events, including any cover-up in regard thereto.
These incidents took place at various places in South Africa. Different applicants were involved in different incidents at King's Cinema Theatre, Alexandra, Johannesburg and at the Highgate Shopping Centre Theatre, Roodepoort.
Other places which were attacked are the Metro 2 Theatre in West Street, Durban and other cinema theatres where the film Cry Freedom was supposed to be screened.
The Amnesty Committee was told that the events relating to the "Cry Freedom" film hereinafter called "the film" started when the Publication Committee, which was appointed in terms of the Publication Control Act 42 of 1974, issued a certificate allowing the film to be screened.
Although having the power to appeal against such a decision, the Director of Publications declined to do so.
The film was scheduled to be exhibited from 29 July 1988. On the 25th July the then Minister of Internal Affairs, Minister Stoffel Botha, in terms of Section 24 (1) (b) of that Act, ordered the Appeal Board of Publications to reconsider the decision that was made and the Certificate that was issued by the Committee.
The Appeal Board duly did so and upheld and confirmed the decision of the Committee which meant that the film could be released for screening. It was set to be screened in various theatres around the country.
The film deals with the death of Steve Biko and with aspects of the life of Donald Woods, who later left the country. The South African Police were concerned that it would increase racial tension and the revolutionary climate in the country.
The police could not resort to the Media Regulations promulgated in terms of the Public Safety Act, 3 of 1953 whereby the Commissioner of Police could issue a certificate attaching the film under the emergency regulations in the light of the decisions of both the Publication Committee and the Appeal Board.
A decision was then taken by Minister Vlok, General van der Merwe, Brigadier McIntyre and the late General Joubert that the screening of the film had to be prevented by staging bomb scares and/or explosions.
Vlok and Van der Merwe testified before the Committee and stated that the country was on the verge of ungovernability and disorder during the period 1987 to 1988. According to them, a contributory factor to this state of ungovernability was the ANC/SACP's utilisation of all possible motivating incidents for the advancement of their political objectives.
Applicants who were part of the planning, ordering and execution of the acts testified that their conduct was motivated by the political unrest and violence which prevailed at the time in the country. It was feared that if the screening of the film was allowed to proceed, it would have stirred civil disobedience and unrest particularly amongst the African population.
General le Roux testified that: "my own view was that showing of the film would cause the revolutionary climate in the Republic to escalate, dangerously so, and I agreed with this proposed unlawful action".
Vlok and Van der Merwe seek amnesty in regard to all the "Cry Freedom" incidents.
The other Applicants apply for amnesty for specific incidents.
A. Explosion and/or bomb scares at the Metro I Theatre, West Street, Durban and other theatres in Durban
Steyn told the Committee that he received an order telephonically from headquarters, Pretoria, to prevent the screening of the film in theatres in Durban. In turn he issued instructions to his subordinates, for instance to Botha, that the screening had to be prevented at theatres wherever the film was to be screened.
In carrying out the instructions, Botha made telephonic bomb threats to two local theatres. Botha applies for amnesty for more than one theatre, although he cannot remember the name of the other theatre.
B. Bomb scare at the Highgate shopping mall, Roodepoort.
Here Le Roux received instructions from the late General Jaap Joubert telephonically to prevent the screening of the film by controlled explosions.
Le Roux in turn instructed Louw who placed a dummy bomb in a toilet in the theatre. Heyneke made a telephonic bomb scare to the management.
C. Bomb scare at Kings Theatre, Alexandra, Johannesburg.
For this incident, Du Toit received instructions from General van der Merwe who explained to him that the decision was from high level that the screening of the film ought to be prevented through control explosions.
Du Toit instructed Van Huyssteen to work together with Zeelie to organise an explosion at the Kings Theatre. The scheme was to make it appear that White conscience groups were responsible for the explosions.
Van Heerden had nothing to do with the planting of the bomb but was on the scene later and assisted in the cover up.
D. The bomb scare at a theatre in Sunnyside, Pretoria.
Kendal states in his application that the instruction came from Brigadier R P McIntyre to inform all Security Branches country wide to prevent the screening of the film at all theatres. Kendall obtained a limpet mine from a certain George Hammond of the explosives division. It was then arranged that Sergeant Pieter van der Merwe and a female constable whose name the Applicant cannot recall should place the limpet mine in the theatre at Sunnyside and that Piet Mogai would then phone the theatre and make a bomb threat. This was done and the theatre was vacated. The police traced and found the bomb. The Applicant cannot recall whether there was any further screening of the film.
In all these incidents there was no injury or death of any person. These matters could have been handled in chambers in terms of Section 19 (3) of the Act.
All the applications comply with the requirements of the Act; the Applicants have made full disclosure of all the material facts relevant to their actions and the acts for which amnesty is sought are acts associated with a political objective. What the Applicants aimed at by preventing screening of the film was to curb a revolutionary situation which could have resulted. Steve Biko was a prominent Black Consciousness Leader who died in the hands of the Police. Donald Woods was regarded, mostly by the Black people, as a White person who contributed in the struggle for liberation and who provided a platform for the Black Consciousness Movement to air its views.
Having considered all the evidence adduced before it and information placed before it, the Committee is satisfied that the Applicants are entitled to amnesty.
Accordingly, all the Applicants are hereby granted amnesty for any act, omission or delict directly connected and/or arising out of incidents related to the preventing of the showing of the "Cry Freedom" film committed during or about July 1988 at various places in South Africa.
SIGNED at CAPE TOWN this ...... day of...... 2000
______JUDGE A WILSON
______ADV L GCABASHE
______ADV C DE JAGER S.C.
______MR J B SIBANYONI AC/2000/109
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.
______
RATSON NNIKI MAHLAKOANE APPLICANT
(AM 5788/97)
______
DECISION
______
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995, as amended (hereinafter referred to as "the Act").
The application relates to an incident which occurred on the 5th July 1990 at about 22h45 where the Applicant and two of his fellow uMkhonto weSizwe ("MK") cadres attempted to rob the Emthonjeni Police Station of weapons but the operation went wrong and an exchange of fire ensued between the police and MK operatives.
The Applicant testified before the Committee that he joined the African National Congress ("ANC") in 1982. He underwent military training in Angola and the German Democratic Republic. In 1989 he was infiltrated into South Africa on a mission in the then Bophuthatswana homeland, presently the North-West Province. The late Chris Hani, Chief-of-Staff, deployed him in the then North-Eastern Transvaal to establish and command units of MK.
While operating in the then Eastern Transvaal, MK discovered that Emthonjeni Police Station, next to Machadodorp was used by askaris to hide their weapons. The presence of askaris in the area presented a threat to their operations and safety. As a MK commander, the Applicant used his initiative and discretion to launch an operation to rob the police station of firearms.
He reconnoitred the police station and drew a sketch. Following their planning and arrangements one member of his unit, namely Solomon Lapulana Chiloane entered the police station through the main entrance. His aim was to execute a hold up of the police and compel them to open the safe containing firearms at the back of the police station. Another member, Shadrack Shakoane was left at the car to keep a lookout. The Applicant went behind the police station and obtained access thereto by jumping over the fence.
Suddenly he heard a shot being fired from a pistol. He immediately knew that they were being fired at because none of the members of his unit had a pistol in their possession. They were armed with shotguns and AK-47's. He immediately proceeded to the reception area where he found Chiloane lying down on the floor, having been shot. He opened fire and one police officer, Mr Solomon Sipho Mbatha, was fatally wounded in the process.
The Applicant retreated to the dead letter box ("DLB") where he hid his weapons. Thereafter he proceeded to Johannesburg and gave a report of the incident to Chris Hani. He then left the country to Botswana and thereafter to Zambia. He left his comrade, Shadrack Shakoane in South Africa. He has never seen him since then. He returned to South Africa in 1991 when the police were still looking for him.
On the advice of the ANC's legal representative, Mr Matthew Phosa, he handed himself over to the Belfast police and was arrested and charged. He was released on R500.00 bail. He applied for indemnity. Since then he has heard nothing about the result of his indemnity application.
The Applicant and members of his unit never intended to kill the police. They were, however, armed so that if they meet with resistance they should be able to use the firearms and escape to evade arrest.
The evidence leader, Ms Mtanga, informed the Committee that she consulted with the policemen who were at the Emthonjeni police station on the night in question, namely Messrs Malope and Mr Mbatha. Both indicated that they do not oppose the application. The necessary notice was served on Sgt. Mahlakoane who was also at the police station. He chose not to attend the hearing.
The evidence leader stated that according to the version of the police the MK member who was killed, Mr Chiloane, asked for water when he entered the police station. The Applicant responded by saying he cannot dispute that but said if that happened, it was not according to the plan. Chiloane was supposed to engage the police in a hold up and drive them behind the police station where there was the safe containing weapons.
When it was put to him that according to the police who were sleeping at the police station, they were woken up by gun shots when their colleague, Mbatha, was fired at, the Applicant disputed that and reiterated that the first shots came from a pistol in the possession of the police.
Having carefully considered the matter, we are satisfied that the Applicant has complied with all of requirements of the Act. He has fully disclosed all the facts relevant to this matter and his conduct constituted an act associated with a political objective. The attempted robbing and stealing of firearms was intended to benefit the ANC and not the Applicant personally.
In the result, the Applicant is GRANTED amnesty as follows:
(a) The murder of Solomon Sipho Mbatha at Emthonjeni Police Station, Machadodorp, on the 5th July 1990.
(b) Sabotage and malicious damage caused to the said police station on the said date;
(c) Attempted robbery and theft of firearms;
(d) Any offence or delict directly arising out of the aforesaid incident.
It is recommended that the next-of-kin of Solomon Sipho Mbatha and the policemen who were present on the scene, namely Messrs Malope, Mahlakoane and Mbatha be declared as victims and are hereby referred to the Committee on Reparations and Rehabilitation accordingly.
DATED at CAPE TOWN this day of 2000
______JUDGE DENZIL POTGIETER
______ADV N SANDI
______MR J B SIBANYONI AC/2000/110
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.
______
SAREL DU PLESSIS CRAFFORD APPLICANT
(AM 5468/97)
______DECISION
______
We are unable to consider this application as the Applicant was deceased at the date of the hearing.
We are, however, of the view that on the facts before us, amnesty is GRANTED to the deceased in respect of the Ernest Ramango incident.
DATED at CAPE TOWN this day of 2000
______JUDGE S KHAMPEPE
______JUDGE N J MOTATA
______MR W MALAN AC/2000/111
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.
______
SIPHIWE NYANDA 1ST APPLICANT
(AM 6231/97)
SOLLY ZACHARIA SHOKE 2ND APPLICANT
(AM 5303/97)
DICK MKHONTO 3RD APPLICANT
(AM 5304/97)
______
DECISION
______This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995, as amended (hereinafter referred to as "the Act").
The Applicants are former members and were in the hierarchy of uMkhonto weSizwe ("MK") the military wing of the African National Congress ("ANC").
The first Applicant was chief of staff of the then Eastern Transvaal machinery of MK. He commanded a project code named Cetshwayo, in terms of which MK infiltrated hardware, that is both weaponry and soldiers from Swaziland into South Africa ("SA") during the period 1985 - 1987. He had with him in the command structure the Second Applicant, the late Theophilus Dlodlo (cde Viva) and the commissar Molefe who is also deceased. He was based in Swaziland. He commanded the operation from early 1985 to early 1987. The details of some of the incidents which occurred under the operation are listed in the further particulars furnished by First Applicant. Presently he is the Chief of the South African National Defence Force ("SANDF").
The Second Applicant was also part of the command structure of the Eastern Transvaal machinery relating to operation Cetshwayo. He was responsible for the supply of hardware whenever requisitions were made to him. Presently he is in the SANDF as Director of Personnel Acquisition (i.e. Recruitment).
The Third Applicant was an operative on the ground. His duties were to do reconnaissance in the areas where landmines had to be planted in the implementation of operation Cetshwayo. He was assisted by his late brother, Ndumiso Mkhonto, who received training underground and became part of the unit operating within the country.
As commander of operation Cetshwayo, the First Applicant applies for amnesty for offences and delicts committed by his command structure in planning and co-ordinating the operation by planting landmines in areas around SA borders with neighbouring countries where the then South African Defence Force ("SADF") and South African Police ("SAP") patrolled and arrested MK cadres who infiltrated into the country. The Second Applicant applies for amnesty for his role in supplying hardware and the Third Applicant seeks amnesty for his role in the actual planting of the explosives. In furnishing further particulars, the First Applicant referred to operations conducted in the former eastern Transvaal and to a lesser extent to the East Rand. His testimony was limited to operation Cetshwayo.
The Third Applicant testified about three incidents he recalls where he planted landmines. The first one is where Corporal Albert Marthinus Le Roux was killed whilst riding on horse back. The second one is where a bakkie detonated a landmine. four occupants were killed and two others, Bhangu James and William Motha, survived. The third one is where a Casspir detonated a landmine and the occupants thereof sustained minor injuries.
The Third Applicant also testified that great care was taken before planting landmines in trying to avoid civilian casualties. He reconnoitred the area for three days, sleeping in the forest before proceeding to plant explosives on the road where the incidents occurred. He observed that the road was only used by the SADF and police in providing logistics (food supply) to soldiers guarding the SA borders. The foot patrols were assisted by a helicopter which often flew in the area. He testified that the whole area was militarised and there was little sign of civilian activities. A few kilometres away there were two SA security forces camps. Even today the area had been converted into a game reserve and there are no people living there.
Advocate Berger, who appeared on behalf of the Applicants, referred the Amnesty Committee to the Promotion of Density of Population in Designated Areas Act 87 of 1979 in terms of which the previous SA government encouraged white farmers to stay and farm along the borders by providing loans to them; the farms were managed according to SADF directives and farmers were to always avail themselves to the SADF to carry out reconnaissance and intelligence. Thus they were incorporated into the SADF and were regarded as legitimate targets by MK. This militarised border zone was significantly extended in 1983 to approximately 50 kilometres. Operation Cetshwayo was launched in 1985 in response to the government's attempts to create a buffer zone along the borders thus frustrating the infiltration of cadres and weaponry into the country. The SA government thus blurred the distinction between military structures and the civilian farming community in these areas.
There was no appearance on behalf of any interested party pursuant to notices given of the hearing. Attorneys Coetzee, Brauckman and Schutte of Middelburg sent a letter dated 2 May 2000 (the actual day of the hearing) by fax to the TRC office in Cape Town on behalf of their client Albertus Rossouw indicating that although their client received the notification of the hearing in terms of Section 19(4) of the Act o 19 April 2000, that they are unable to attend and require the matter to be postponed. Having listened to argument on the matter by Advocate Berger and Ms Mtanga, the leader of evidence, both strenuously opposing any postponement of the matter, we found that no proper basis had been laid for a postponement and that it would accordingly be in the interest of justice for the hearing to proceed.
The positions of the other known victims of the operation are as follows. Mr Johannes Petrus Roos, the next-of-kin of Mrs M C Roos and Jaco Roos emigrated to Botswana and his whereabouts could not be ascertained; Mrs A H van Tonder, the next-of-kin of Corporal Albert Marthinus Le Roux, has since relocated to a new address unknown to the present occupants of the house where she previously resided.
The next-of-kin of the late Msesi Tryphina Msibi and the occupants of the bakkie which detonated the explosive on the Barberton - Diepgezet mine road were also not present at the hearing. Ms Mtanga advised the Committee that attempts to serve notices on them were unsuccessful. The assistance of Igwalagwala FM and Barberton Community Radio was enlisted to announce that these victims should urgently contact the TRC in connection with the hearing.
At the end of the hearing the Committee indicated that any information which may be tendered by the victims before the decision is made, would be considered and made available to the Applicant's legal representatives.
On the 3rd May 2000 the aforesaid victims responded to the radio broadcasts and consulted with the evidence leader who conveyed to the Committee that they do not wish to oppose the application. The matter is accordingly unopposed.
Having carefully considered the matter, we are satisfied that the actions by the three Applicants were associated with a political objective. They were military actions done in the interest and at the behest of MK, the military wing of the ANC. They fall squarely within the ambit of Section 20(2) of the Act, in particular subsections 2(a), (d) and (f). The Third Applicant's evidence in describing the area where the van detonated the explosives accords with the contents of the affidavit deposed to by Bhangu James Motha (William Motsa) to the police on the 28th April 1987 and which forms part of the papers before us.
We are also satisfied that the Applicants made full disclosure of all relevant facts. Their applications also comply with the technical requirements of the Act.
We are accordingly satisfied that all three Applicants complied with the requirements of the Act. They are hereby GRANTED amnesty for all offences, delicts and acts or omissions committed and directly arising out of the activities of operation Cetshwayo during or about the period 1985 - 1987 at or near the Eastern Transvaal border including the following landmine explosions:
(i) at or near Volksrust on or about 5 July 1986 where one person was injured;
(ii) at or near the Mozambique border on or about 7 September 1986, resultant damage or injuries unknown;
(iii) at or near the Mozambican border on or about 7 September 1986 when a SADF vehicle detonated a landmine and approximately 6 SADF members were injured;
(iv) at or near Volksrust on or about 22 October 1986 when two explosions caused unspecified damage to property;
(v) at or near Nelspruit on or about 4 November 1986 when one woman was killed and an unspecified number of children injured;
(vi) in or near Eastern Transvaal on or about 4 November 1986 when Lance-Corporal Le Roux was killed on horseback;
(vii) at or near the Barberton-Diepgezet Mine road on or about 28 March 1987 when four occupants of a bakkie were killed and two occupants injured.
In our opinion all the persons killed or who sustained injuries or suffered damages as a result of this operations are victims and are referred for consideration in terms of Section 22 of the Act.
DATED at CAPE TOWN this day of 2000
______JUDGE DENZIL POTGIETER
______ADV N SANDI
______MR J B SIBANYONI AC/2000/112
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.
______
MAGOME FREDDY TLADI APPLICANT
(AM 2043/96)
______DECISION
______The Applicant is currently serving a long term of imprisonment for the murder of Matule Bapela. He is now seeking amnesty for the crime and claims that at the time of the occurrence of the incident he was a member of the African National Congress ("ANC") and acted on its behalf.
The matter arises out of an incident which occurred in the evening of 20 August 1992 when the Applicant, a crowd of ANC supporters and residents of the Marishane Village proceeded to the home of the deceased. On arrival there they surrounded the premises and demanded that she comes out. She was being accused of being a witch. When she refused to comply with the order her home was stoned and set alight. She was dragged away and forced to drink petrol. The attackers were demanding that she reveals the identity of other witches who were believed to have been responsible for mysterious deaths of youths in the village. She denied that she was a witch and averred that on the contrary she was also a victim of witchcraft as her son had just passed away. The Applicant doused her with petrol.
Present at the home of the deceased that fateful evening was her husband, Mr Bapela and her son who draw out an axe in an attempt to repel the attackers. Both Mr Bapela and the Applicant pleaded with Bapela (the junior) to put the axe away. This he did, realising that he was no match for the crowd which was very agitated and aggressive. Ironically, the Applicant says he was surprised by the accusation against the deceased.
Before the deceased was dragged away he asked members of the crowd why they had come to the house and they replied that the deceased was a witch. They further alleged that she had caused all the deaths in the village.
Initially, a meeting of residents of the village had been called by the ANC to discuss the problem of witchcraft in the area. Members of the community, young and old, attended. It was resolved that money be collected from residents to consult a witchdoctor. They wanted to find out who was responsible for the deaths, in other words who was the witch in the locality. A delegation was mandated to consult a witchdoctor and report back to the meeting. The Applicant was also elected. When they approached witchdoctor Taledi who resided not far from the village, he refused to accept their money and said they knew who the witches were.
They went back to the meeting where they gave a report-back. Immediately the crowed decided that petrol be acquired to burn witches in the village. At that stage no names had been mentioned by any person from the crowd. Worst of all, Taledi had not mentioned any names of the so-called witches. When the petrol was obtained the crowd made its way to the home of the deceased. They were singing and toyi-toyiing. The Applicant was very much taken aback and nevertheless followed the crowd. He did not know what the destination was. He has never suspected the deceased of being a witch and no person in the village had previously entertained such belief. He did not even know if she had a political affiliation. No person had accused her of being a political opponent or enemy of the ANC. The Applicant also did not believe so but the crowd predominantly comprised ANC Youth League members and supporters and it was an ANC policy that informers and witches be killed. He was aware of similar incidents in other villages but it had never happened in his village, Marishane.
Under cross-examination by Mr Mokoena who represented the Bapela family the Applicant admitted that the attack could have been motivated by jealousy on account of the relatively better standard of living which the Bapelas seemed to enjoy. He has also admitted that at the time of the occurrence of the incident there was no ANC branch in the area. Under cross-examination he said he did not permanently stay in the village and worked in the mines where he attended ANC meetings. He had not previously attended an ANC meeting at Marishane Village.
After carefully considering the Applicant's evidence we are satisfied that the murder of the deceased in the given circumstances cannot be said to be "an act associated with a political objective" in terms of the Act. There is no evidence that the deceased was perceived by the Applicant and his co-perpetrators to be a political opponent or enemy of the ANC of which they were allegedly supporters. The murder and burning of the deceased was totally unjustified in the circumstances.
Further, and having regard to the evidence, it is very doubtful that the crime was committed by bona fide supporters of the ANC acting on its behalf and in furtherance of its political struggle.
In the result the application is REFUSED.
DATED at CAPE TOWN this day of 2000
______AJ DENZIL POTGIETER S.C.
______ADV N SANDI
______MR J B SIBANYONI AC/2000/113
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.
______
GOLDEN HOLIDAY SEKGOBELA APPLICANT
(AM 1026/96)
______
DECISION
______The Applicant herein is seeking amnesty for the murder of Poppy Seerane ("the deceased"), which crime was committed at Leboeng, Lydenburg District, on 15 December 1990. The deceased was alleged to be a witch and had allegedly caused the death of certain people and to mention but a few, her husband, her husband's brother and a sister-in-law.
At the hearing the Applicant, who claims that he was a supporter of the African National Congress ("ANC"), was the only witness to testify in support of his application.
The Applicant testified that he had known the deceased and her husband for a long time. The husband had died in 1989 after a very short illness and his brother also died after he was struck by lightning. There were several deaths in the village (Leboeng) which included a bus accident in which about fifteen (15) youths died. The Applicant knew all the deceased who died there but is unable to recall their names. When asked what was the political affiliation of the said youths, he said he used to see them in ANC meetings which he frequently attended. He is not certain about the political affiliation of the husband of the deceased and the brother, but "thinks" they also supported the ANC. He did not give a reason for his opinion.
The Applicant says the deaths caused a suspicion in the village and primarily amongst the youth. It was suspected that witchcraft was by some magic way responsible for the spate of deaths and they wanted to consult a witch-doctor ("inyanga") to "smell" (identify) the witch who was behind these deaths. At that stage no fingers were being pointed at anyone by any person in the village as all concerned wanted to know from the witch-doctor. The local chief was asked to call a meeting which he did. It was attended by the youth and the elderly members of the community to discuss the suspected problem of witchcraft in the village. The political affiliation of the chief is unknown to the Applicant.
At the meeting on Thomas Sihlangu, an ANC Youth League members, addressed the attendants and it was resolved that money be collected in the village so they could go and see a witch-doctor. Because they feared that a local witchdoctor could falsely implicate an innocent person to settle personal scores they resolved to consult a witchdoctor who lived very far from Leboeng, namely Sitoto Semnyama of Komatipoort. At the meeting two (2) groups had been elected to represent the youth and the chief's constituencies. The Applicant was elected to represent the youth.
When they consulted Sitoto it was in the evening and they spent the entire night with him. He threw bones to the ground and said witchcraft was the cause of the deaths. He gave a "description" of the witches that were involved but there was no mention of names. When the Applicant was asked what descriptions were given he said normally witch-doctors describe a witch by reference to the physical location of his/her house and objects in the yard. This is the only way those who have come to consult him will know who is being "smelt" and that person will be the witch who has been identified by the witch-doctor. They were satisfied from the descriptions given that the witch-doctor had pointed his finger at the deceased and three other people. It is necessary to state that the Applicant's evidence in this respect was very terse and vague.
When they went back to the village a report-back was given to the chief who again called a meeting. The meeting decided that the four (4) witches should be fetched. When the so-called witches were brought to the meeting they were informed that they had been identified as the witches who were causing all the deaths in the village. Three of them agreed that they were indeed the witches but the deceased strongly denied being a witch. They were all told to leave the village with immediate effect. The others agreed but the deceased continued to deny that she was a witch and said she was not going to leave the village. She was maintaining that she was innocent.
Then the Applicant and his compatriots took the deceased to Sitoto who confirmed that she was one of the witches in the village. There the deceased agreed that she was indeed a witch and promised to leave the village as she was being ordered to do by the community. But when they returned to the village she again insisted that she was not a witch. She was still adamant not to leave the village and walked out of the meeting which had been called to give another report- back. There were many people, including the chief, at the gathering which was chaired by Thomas Sihlangu.
When the deceased walked out the meeting broke down in chaos as all the people there were shouting that she must be killed for refusing to leave the village. The meeting elected certain people to carry out the killing. These were David Nkoma, L. Sekgobela, Mpoya Erick Sekgobela and the Applicant. The Applicant says he believes that he was chosen because he was quite close to the deceased. He adds that it was a very unpleasant experience to have to kill a friend. In the evening in question they proceeded to her place with axes and pangas. They knocked on the door and when she opened the door she was hacked to death.
At the criminal trial, Applicant was the only accused to be convicted of the crime. Charges against his co-perpetrators were withdrawn due to insufficiency of evidence.
The Applicant says he committed the murder in execution of an order from the community and the ANC Youth League. At the hearing no statements or testimonies were received from any one of the implicated persons. This is in spite of the fact that they were notified of the date and place of the hearing. In any event there is no evidence that the murder of the deceased is "an act associated with a political objective" in terms of the Act. The murder of the deceased, simply because she was refusing to leave the village, was completely unjustified in the circumstances. No attempt had been made to force her to comply with the command and her murder was disproportionate to the stated objective to expel her from the village.
In the result amnesty is REFUSED.
DATED at CAPE TOWN this day of 2000
______JUDGE DENZIL POTGIETER
______ADV N SANDI
______MR J B SIBANYONI AC/2000/114
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.
______
ELTON MZIWAWO DLAMINI APPLICANT
(AM 3841/96)
______
DECISION
______
The Applicant applies for amnesty in respect of the crimes of armed robbery, the unlawful possession of a firearm and ammunition, the murder of Johannes Jacob van Niekerk and car theft, which offences were committed on the 4th October 1991 at Korsten in the district of Port Elizabeth.
The Applicant testified that he got involved in politics during 1983 as a member of AZANYU, a student wing of the Pan Africanist Congress (PAC).
During the violence of the 1980's, he was arrested for armed robbery when fund raising for members of AZANYU to leave the country to undergo military training. He was sentenced to ten years imprisonment and released unconditionally on the 4th July 1991.
During the same month he left Port Elizabeth for Itafalefefe in the former Transkei where he received a crash course in military training for approximately three months.
He thereafter returned to Port Elizabeth as an APLA soldier and subsequently became a unit commander.
On 23rd September 1991 he received instructions from his Regional Commander, one Mandla, to execute an operation to fund raise for APLA which was experiencing financial problems. Mandla informed him that he had identified Exmego Engineering Company at Lindsay Road, Korsten, Port Elizabeth as the target. he was further instructed to go and reconnoitre the company as Mandla had already seen how the payroll was transported.
On Monday 24th September 1991, he began his reconnaissance which lasted until Friday 28th September 1991. He found out the process of how the company worked as well as how the payroll was transported. The same Friday, he gave Mandla all the details and he (Mandla) was satisfied and asked for the whereabouts of the other unit members which he gave him. He assured him of their safety and Mandla instructed him that they should remain in their respective places. An appointment was made for the Sunday and the firearms were delivered to the Applicant to be distributed to unit members for the operation.
The Applicant instructed Simphiwe (Mzimeli Pali) now deceased, to secure (steal) a motor vehicle for the operation on the 4th October.
On the 4th October 1991, the Applicant and four others went to Exmego Engineering Company. Whilst being there the bakkie carrying money arrived. He pointed a gun at the security guard who ran away. They then went to Van Niekerk, who was in the bakkie and told him it was a robbery. he threw the small case containing money at the Applicant who "ducked". He then, so the Applicant thought, tried to draw a gun and the Applicant shot him twice, since he thought Van Niekerk wanted to distract his attention and probably shoot him in return.
They took the money and when they got to the township (New Brighton) they counted it and found that it was R10 900,00. The money was given to the Regional Commander and the firearms were returned to him.
The Applicant was the only one arrested on the 13th December 1991 and during 1992 he was convicted and sentenced to 15 years imprisonment. Whilst in prison he learnt that his comrades had died.
The application was opposed by one Peter Lawrence hart, who is married to the deceased's daughter. He testified that it was not the deceased's turn to fetch the payroll from the bank and he left his firearm at home and the payroll was drawn at irregular times either on a Thursday or Friday. He was not employed at the factory but was employed elsewhere. The Applicant insisted that the deceased was wearing a gun.
It is clear the deceased did fetch the money as he was killed on his return with the money. There may have been a change made that morning and in these circumstances the deceased may have borrowed a firearm.
We are, after careful consideration of all the evidence before us, satisfied that the crimes committed by the Applicant were acts committed with a political objective.
We are also satisfied that the Applicant has been truthful in his testimony and has made a full disclosure of all the relevant facts and his application complies with the requirements of the Act.
In the premises the application succeeds and amnesty is GRANTED in respect of:
(a) armed robbery;
(b) unlawful possession of firearms and ammunition;
(c) murder of Van Niekerk;
(d) car theft; and
(e) delicts flowing from the above crimes.
The immediate family of Van Niekerk are referred to the Committee on Reparations and Rehabilitation to be dealt with in terms of the Act.
Signed at Cape Town on this day of 2000.
______JUDGE A WILSON
______JUDGE S MILLER
______JUDGE N J MOTATA AC/2000/115
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.
______
ISAAC SEMELA MOHAMANE 1ST APPLICANT
(AM 1347/96)
SOLOMON NQAQOME SERA 2ND APPLICANT
(AM 1313/96)
JACK TUMI MOFOKENG 3RD APPLICANT
(AM 4114/96)
PHILLIP TAEMANE MOSIA 4TH APPLICANT
(AM 3127/96)
______
DECISION
______Isaac Semela Mohamane (the 1st Applicant), Solomon Nqaqome Sere (the 2nd Applicant), Jack Tumi Mofokeng (the 3rd Applicant) and Phillip Taemane Mosia (the 4th Applicant) all apply for amnesty in respect of the murder of two members of the Qwa Qwa police force, namely Mokete Benjamin Makau and Tselane Jacobine Mosebi as well as of being in the unlawful possession of firearms and ammunition. The crimes in question took place on or about 5 June 1993 at or near Phuthaditjhaba in the district of Witsieshoek.
The Applicants testified that they were all members of the African National Congress (the ANC) and that the four of them constituted a Self Defence Unit (SDU). The 1st Applicant was the commander of the unit.
The 1st Applicant testified at the hearing of this matter that he received an order from his commander, one Simon Mofokeng, also known as Grey Khumalo, who was the Chief of Staff of the SDU's in the Free State. The order that he received was that his unit should shoot and kill policemen but not to take their weapons. He also received firearms from the said Mofokeng.
The 1st Applicant, according to the evidence of the Applicants given at the hearing, thereafter relayed the order to the other Applicants and they planned an operation to carry out such orders. During the night of 4th June 1993 the 1st and 2nd Applicant decided to go on a patrol. They went to a shopping centre where they identified a motor vehicle that was used by the police. It was parked in the parking lot of the shopping centre. They went to fetch the other Applicants and returned to the parking lot at approximately 22h00. The 2nd Applicant, who was the driver of the vehicle they were using, was instructed to go and park at a specified place about one kilometre away and to wait for the others there.
The 4th Applicant then went into a restaurant in the shopping centre and shortly thereafter returned to the 1st and 3rd Applicants and informed them that members of the police force were in the restaurant. They then waited until after midnight when a policeman, Moketi Makau and a policewoman, Tselani Mosebi, returned to their vehicle in the parking lot. When they were in the process of entering the vehicle both the 1st Applicant and the 3rd Applicant fired several shots at them. Both Moketi Makau and Tselani Mosebi were killed in the shooting.
The Applicants fled the scene but were arrested a few days later. They were all convicted of the murders and of being in unlawful possession of firearms. They were all sentenced to long terms of imprisonment.
Section 20(1) of the Promotion of National Unity and Reconciliation Act, No.34 of 1995 (the Act) provides that amnesty shall be granted if the Committee is satisfied that
(a) the application complies with the requirements of the Act,
(b) the offences to which the application relates are acts associated with a political objective committed in the course of the conflicts of the past, and
(c) the applicant has made a full disclosure of all relevant facts.
The first of the abovementioned requirements has been complied with in that all the applications of the Applicants were timeously submitted in the proper form.
We are, however, not satisfied that the offences committed by the Applicant were acts associated with a political objective as contemplated by the provisions of the Act. It is apparent from both the judgement delivered at the trial of the Applicants and that of the then Appellate Division of the Supreme Court that one of the police force members murdered by the Applicants, namely Mokete Benjamin Makau, was the investigating officer in a case of armed robbery in which the 1st Applicant was a suspect.
The probabilities are, in our view, overwhelming that the Applicants specifically targeted and killed Mr Makau in an attempt to hamper the police investigation against the 1st Applicant. This is particularly so when one takes into account that at that stage, June 1992, the ANC had terminated the armed struggle against the government and it was not the policy of the ANC to murder policemen and policewomen.
The evidence of the 1st Applicant, that he received orders from a high-ranking ANC official that he must kill members and not take their firearms is accordingly rejected.
We are also not satisfied that the Applicants have made a full disclosure of all the relevant facts. All of the Applicants were unsatisfactory witnesses. Serious contradictions existed between what they stated in their application forms and their testimony at the hearing. As stated above, they testified at the hearing that the killing of the deceased persons was done in the execution of an order received from Simon Mofokeng and that it was also ordered not to take firearms from their victims.
The 1st Applicant stated in his application form that the murders were "stimulated by political patriotism and nationalism within me". He made no mention therein of having received an order.
The 2nd Applicant also made no mention in his application form of acting upon orders. On the contrary he stated "I was not ordered and this was stimulated by political patriotism within myself".
The 3rd Applicant also made no mention of acting on orders in his application form and stated that he and his fellow Applicants acted on their own initiative. The 4th Applicant stated in his application form that the deceased persons were murdered for the purpose of disarming them. he also specifically stated that "there was no direct order from any leader of the ANC".
In the circumstances the applications do not succeed and accordingly the amnesty applications of all the Applicants are REFUSED.
Dated at this day of 2000.
______JUDGE S MILLER
______MR J B SIBANYONI
______DR W TSOTSI AC/2000/116
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.
______
SYDNEY MUFAMADI 1ST APPLICANT
(AM 4160/96)
MOSES MAYEKISO 2ND APPLICANT
(AM 4161/96)
JAYESALEEN NAIDOO 3RD APPLICANT
(AM 4162/96)
______
DECISION
______
The Applicants apply for amnesty in respect of the kidnapping of Monge Joubert Maleka on 28 August 1990 at Johannesburg.
At the time of the incident Sydney Mufamadi (the 1st Applicant) was the Assistant General Secretary of the Congress of South African Trade Unions (COSATU), Moses Mayekiso (the 2nd Applicant) was an Executive Committee member of COSATU and Jayesaleen Naidoo (the 3rd Applicant) was the General Secretary of COSATU.
COSATU is a trade union organisation which at the time in question had in excess of a million paid up members and which was organised into various national industrial unions. It was vehemently opposed to the discriminatory policies of the then government and strived and fought for democracy on the shop floor. It did not restrict its efforts to the rights of its members and affiliated unions only but challenged the government in respect of all matters concerning democratic practices and human rights and it became actively involved in the broader struggle for freedom.
A consequence of the vigorous and high profile opposition presented by COSATU was an antagonistic and often violent response from government, certain State organs and certain supporters of government. During the period 1986 to July 1990 COSATU, its affiliate unions and officials of COSATU and its affiliates suffered no less than forty six violent attacks, many of which took the form of bomb explosions at premises occupied by them.
These frequent and ongoing attacks understandably led to the leadership of COSATU being sensitive to and worried about further attacks.
The bombing of COSATU House in Johannesburg during May 1987 compelled COSATU to move its offices to the sixth floor of National Acceptance House in Rissik Street, Johannesburg.
On 28 August 1990 it was reported to the Applicants that a man was maintaining surveillance over the building from a point across the street. On satisfying themselves that the man indeed appeared to be monitoring the building, the Applicants left the buildings and went to the man who was Monge Joubert Maleka. They accosted him and found him to be in possession of a two-way radio and photographs of Geraldine Fraser who was the administrative officer of the South African Communist Party and who occupied an office in the same building as COSATU.
Mr Maleka was then taken by the Applicants to their offices. he confessed that he had been employed by the police to keep the building under surveillance and to inform them of the movements of Ms Fraser. It was decided by the Applicants to call a press conference and Mr Maleka was held against his will in the offices pending the press conference. The African National Congress was also asked to request the authorities at national level to investigate the incident and the Security Police were informed about the situation and were requested to fetch Mr Maleka.
A press conference was held and thereafter, in the absence of the Applicants, Mr Maleka was assaulted by some members of COSATU.
The Applicants were charged and convicted of kidnapping and assault in the Regional Court. On appeal the Witwatersrand Local Division of the Supreme Court set aside the conviction of assault but confirmed the kidnapping conviction. A further appeal to the Supreme Court of Appeal against the kidnapping conviction is pending the outcome of these applications for amnesty.
The applications are not opposed.
The Applicants have explained fully their actions of 28 August 1990 and we are satisfied that they have made a full disclosure of all relevant facts.
It is evident from the testimony that we have heard and from the documentation that has been placed before us that the whole incident as inextricably linked to the political struggle that was taking place at the time. There is no suggestion whatsoever that any of the Applicants acted out of personal malice or spite against Mr Maleka and we are satisfied that the kidnapping was an act committed with a political objective during the course of the conflicts of the past.
We are also satisfied that the applications comply with the requirements of the provisions of the Promotion of National Unity and Reconciliation Act No. 34 of 1995.
In the result, the applications succeed and Sydney Mufamadi, Moses Mayekiso and Jayesaleen Naidoo are GRANTED amnesty in respect of the kidnapping of Monge Joubert Maleka on 28 August 1990 at Johannesburg.
We are of the opinion that Mr Monge Joubert Maleka is a victim and this matter is referred to the Committee on Reparation and Rehabilitation for consideration.
Dated at this day of 2000.
______JUDGE S MILLER
______JUDGE N J MOTATA
______ADV N SANDI AC/2000/117
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.
______
SANDILE BIRMINGHAM GARANE APPLICANT
(AM 5474/97)
______
DECISION
______
The Applicant applies for amnesty in respect of murder and attempted murder.
The Applicant was, at all material times, a member of the African National Congress (the ANC) and uMkhonto weSizwe (MK). During 1990 he was a member of the ANC Self Defence Unit (SDU) which was operating at Sangweni Section in Tembisa. The SDU had been established that year to provide protection to ANC members and supporters who were resident in that area and who were subjected to incessant attacks from supporters of the Inkatha Freedom Party (the IFP) who were assisted by members of the Toaster Gang. The Toaster Gang consisted of persons who had been expelled from the ANC in Tembisa. They specialised in car hijackings and also aligned themselves with IFP supporters who were fighting the ANC in Tembisa.
During or about October 1990 the Applicant and one Siphiwe Mavuso, who was also a member of the SDU, were deployed to protect the area near Khaya Store in Tembisa. While there they heard the sound of shots being fired. A group of men and women, apparently fleeing from the persons who were firing the shots ran past them.
The Applicant and the said Mavuso took cover as two young men, believed to be members of Toasters Gang, appeared bearing firearms. They fired shots at the Applicant and his companion. The Applicant returned fire hitting one of the assailants who fell to the ground. The other ran away. The assailant who was shot, whose identity is not known, died as a result of being shot by the Applicant. Siphiwe Mavuso picked up the firearm of the mortally wounded assailant which firearm was thereafter handed over to the overall commander of the SDU, Mzwakwe Radebe.
The Applicant was never arrested or charged in respect of the incident.
It is clear from the evidence that the incident was yet another tragic episode in the saga of political violence that racked Tembisa at that time. We are satisfied that the crimes committed by the Applicant were acts committed with a political objective during the course of the conflicts of the past.
We are also satisfied that the Applicant has made a full disclosure of all relevant facts and that his application for amnesty complies with the requirements of the Promotion of National Unity and Reconciliation Act, No 34 of 1995.
Applicant is accordingly GRANTED amnesty in respect of the murder of an unknown person and the attempted murder of an unknown person at Tembisa during or about October 1990.
We are of the view that the immediate family of the murdered person and that the victim of the attempted murder are victims and this matter is referred to the Committee on Reparations and Rehabilitation for its consideration. DATED AT THIS DAY OF 2000.
______JUDGE S MILLER
______JUDGE N J MOTATA
______ADV N SANDI AC/2000/118
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.
______
BHEKIZIZWE CHRISTOPHER MDLALOSE APPLICANT
(AM 5302/97)
______
DECISION
______
The Applicant was, at all material times, a member of the African National Congress (the ANC) and its armed wing, uMkhonto weSizwe (MK). He underwent military training in Swaziland where he was, inter alia, trained in the use of explosives.
The Applicant was the commander of a unit in the Transvaal urban Machinery of MK. Other members of the unit included Norman Ngwenya, Wellington Sungzisa, Linda Molemoi and Hamilton Hlongwane.
During November 1977 the Applicant, together with Norman Ngwenya, placed a mine on the railway line between Dunswart and Apex.
The mine exploded and caused a train to be derailed. Nobody was killed or injured in the incident.
During December 1977 the Applicant and Norman Ngwenya placed a limpet mine in a car park at the Benoni Railway Station, which car park was used for the parking of vehicles belonging to the Railway Police. The mine exploded and caused damage to a number of vehicles. Nobody was killed or injured in the explosion.
On 9th January 1978 the Applicant together with the other members of his unit were proceeding to the premises of Reumech, a company which manufactured military hardware. They were in possession of a limpet mine which they intended to place at such premises. When at the Dunswart Railway Station they were confronted by a member of the South African Police who demanded to search them. The Applicant shot the policeman and he and his comrades fled the scene. The policeman was injured in the shooting. The mine was never placed at Reumech.
We, after considering the evidence and the documentation that has been placed before us, are satisfied that the aforementioned offences were acts committed with a political objective as contemplated by the provisions of the Promotion of National Unity and Reconciliation Act, No 34 of 1995. We are also satisfied that the Applicant has made a full disclosure of all relevant facts.
In the circumstances, the Applicant is GRANTED amnesty in respect of:
1. the bombing of a railway line and the derailing of a train between Dunswart and Apex during November 1977;
2. the bombing of a car park at or near the Benoni Railway Station which resulted in the damage of a number of vehicles during December 1977; 3. the shooting of a policeman at or near the Dunswart Railway Station on or about 9th January 1978; and
4. the unlawful possession of firearms and explosive materials during the period November 1977 to January 1978.
We are of the opinion that the policeman who was injured in the shooting at or near Dunswart Railway Station on 9 January 1978 is a victim and this matter is referred to the Committee on Reparation and Rehabilitation for its consideration.
Dated at this day of 2000.
______JUDGE S MILLER
______JUDGE N J MOTATA
______ADV N SANDI AC/2000/119
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.
______
MARVIN MOKGATLE MAESELA 1ST APPLICANT
(AM 3149/96)
MASHEME ERIC TEKANE 2ND APPLICANT
(AM 7197/97)
THABISO GERALD SAMUEL TEKANE 3RD APPLICANT
(AM 7256/97)
______
DECISION
______
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The matter relates mainly to the killing of a member of the South African Police, Matjebe Samuel Satekge ("the deceased") on or about 5 February 1993 at or near Rockville in the district of Johannesburg. All of the Applicants were convicted and sentenced to long periods of imprisonment pursuant to the incident.
The matter also concerns some other incidents which are dealt with more fully later in this decision.
It is necessary at the outset to deal with the position of Thabiso Tekane ("Thabiso") who was one of the perpetrators of the killing in question. He was convicted and sentenced pursuant to the incident during March 1998 some time after the trial of his co-applicant, Marvin Mogatle Maesela ("Marvin"). He stood trial together with his brother and co-applicant Nathaniel Eric Mashene Tekane ("Nathaniel").
At the commencement of the proceedings we only had the amnesty applications of Marvin and Nathaniel physically before us. Mr Shai, who represented the applicants, indicated to us at the time that he had also received instructions to appear on behalf of Thabiso who is a further applicant in respect of the incident. He indicated that he initially only received instructions to appear on behalf of Marvin, but when he received the papers in the matter from the Amnesty Committee's offices, the application of Nathaniel was also included. When he visited Marvin and Nathaniel in prison, they indicated that Thabiso also applied for amnesty respect of the incident. He then received instructions to also represent Thabiso. All efforts to locate the application of Thabiso proved fruitless. The leader of evidence, Ms Mtanga, placed on record that she only became aware of the situation concerning Thabiso at the hearing. In the limited time at her disposal, she made contact with the Amnesty Committee's offices in Cape Town from the venue of the hearing in Pretoria. She was informed that the database of amnesty applications does not contain Thabiso's name which is taken to indicate that his amnesty application was never received at the offices in Cape Town. We instructed Ms Mtanga to ensure that a diligent search be undertaken for Thabiso's application at the offices while we proceed with the applications of Marvin and Nathaniel. At the conclusion of these applications, no further progress was made on the search in respect of Thabiso's application. We allowed Mr Shai to proceed with the evidence of Thabiso pending the finalisation of the issue concerning his amnesty application. At the conclusion of Thabiso's testimony, the panel elicited the necessary evidence from him concerning his amnesty application.
This evidence is briefly that he was at Grootvlei Prison awaiting trial when he obtained an amnesty application form from the prison which he completed with the assistance of Thabiso Makwala, a fellow inmate and member of the Azanian Peoples Liberation Army ("APLA") who has since died. He was at first reluctant to submit an amnesty application, but was eventually persuaded to do so by his comrades. He recalls being escorted to the prison administration offices by a warder, Mr Gholotsa, to hand in the completed form which was handed to another warder only known to him as Sam. The understanding was that the prison would submit the form to the Amnesty Committee in Cape Town. This was during March 1997. Thabiso recalls that he missed the first deadline for the submission of amnesty applications and decided to submit his application when the deadline was extended to 30 September 1997. He was transferred from Grootvlei Prison soon after handing in his amnesty application. During the course of his trial, the question of his and Nathaniel's amnesty applications arose. His legal representative endeavoured to ascertain the situation concerning the applications which would clearly have been relevant for the purposes of the trial. Only Nathaniel's application could be located through the assistance of the African National Congress TRC Desk. Efforts were made by Thabiso and his family to clarify the position since the matter arose at the beginning of 1998. The Amnesty Committee offices were contacted without any success. This continued right up to the commencement of the hearing. At the conclusion of the proceedings that situation concerning the whereabouts of the relevant amnesty application had not changed.
Mr Shai requested us to proceed and deal with the matter on the basis of Thabiso's evidence that he had submitted a proper application for amnesty. We find no reason not to accept the relevant evidence of Thabiso which is clear and convincing in regard to the completion and submission of his application. We cannot find any blameworthy conduct on his part in regard to the failure to locate the whereabouts of the application.
In view of the fact that Thabiso and the other applicants are in custody in respect of the incident forming the subject matter of the application and a considerable period of time has already elapsed, it would be in the interest of justice for the matter to be finalised on the basis of the evidence (which we accept) that Thabiso has complied with the requirements of Section 18(1) of the Act. In the meantime the necessary administrative steps have been taken to register the application of Thabiso. We accordingly proceed to deal with the merits of the matter on that basis.
All of the Applicants were members or supporters of the African National Congress ("ANC") at all material times. They were also members of a Self-Defence Unit ("SDU") established by the ANC which operated in the area of Rockville under the command of Thabiso at the time of the incident. One of the orders conveyed to the SDU by members of the ANC leadership was to disarm members of the police. The task was left to the unit to identify appropriate targets. It was foreseen that these attacks would be resisted by members of the police and that the SDU members should themselves be armed in order to be effective.
During January 1993 and in execution of this order, the deceased was identified as a target to be disarmed. Members of the SDU reconnoitred his movements and it was eventually decided to attack him at home in the early hours of the morning as he leaves for work in the police truck which he usually drives.
On the morning of the incident, members of the SDU, including the Applicants, proceeded to the house of the deceased. They were all armed, some with firearms which included two AK-47 assault rifles and one 9mm pistol. Thabiso had to lead the attack on the deceased. On their way they heard the sound of an approaching vehicle which they thought could possibly belong to the police. The group took cover and noticed that it was a bread delivery truck which stopped at a nearby shop. The occupants of the truck noticed Nathaniel where he was hiding and in all likelihood also saw Nathaniel trying to conceal the AK-47 rifle in his possession. Nathaniel fired some shots in order to scare them off and stop them from coming to where he was hiding. They fled and Nathaniel immediately joined up wit the other SDU members and reported to them what had happened. Nathaniel was clearly preventing the occupants of the truck from interfering with the group of attackers who were on their way to the house of the deceased. Applicants were eventually charged with assault and attempted murder of the four occupants of the truck. The group concealed themselves in the vicinity of the deceased's home and waited for him to leave the house. After a while the deceased got into the truck and drove it out of the yard. As he returned to the truck after closing the gate, Thabiso swung into action and confronted the deceased who was already inside the vehicle. The deceased made a sudden movement which Thabiso interpreted as reaching for a gun. Thabiso opened fire as he was taking cover. The truck drove away as Thabiso summoned the other SDU members to assist. Both Marvin and Nathaniel fired at the truck which came to a halt some distance away. They moved towards the stationary truck but had to retreat when they saw the police arriving on the scene. They did not manage to take the firearm of the deceased.
Having carefully considered the matter, we are satisfied that the Applicants have made a full disclosure of all relevant facts. The attack was launched in execution of an order from their political superiors in the ANC to disarm members of the police. The circumstances of the matter clearly indicate that Applicants' conduct was associated with a political objective. Although Applicants did not necessarily desire the death of the deceased, the eventual killing formed an integral part of the attempt at disarming the deceased. In the same vein, the firing of shots at the bread delivery truck formed an integral part of the execution of the plan to disarm the deceased since it was primarily motivated by a desire to prevent disruption of the plan while the group was still on its way to the scene of the attack. The fact that this specific turn of events was not expressly catered for in the planning, does not detract from the logical fact that it would have been within their contemplation that any possible obstacle to the execution of the plan would have to be eliminated. It is clear from the evidence of Nathaniel that his main aim in firing at the occupants of the truck was to scare them off and prevent them from interfering with the execution of the plan to attack the deceased.
We are accordingly satisfied that the applications comply with all of the requirements of the Act.
Nathaniel also applied for amnesty in respect of the theft of a motor vehicle during or about the period 1976 - 1977. He was part of a group intending to leave South African to join the ANC in Lesotho. They were transported to Bloemfontein but had no transport to take them further. Pursuant to a decision taken by the group, Nathaniel volunteered to steal a motor vehicle with the assistance of an employee of Oranje Toyota, Bloemfontein. The vehicle would be used to transport the group to Lesotho. Nathaniel was apprehended after having stolen the vehicle and was convicted and sentenced to corporal punishment in respect of the theft. It is clear that he was not acting for personal gain and that the theft of the vehicle was directly associated with the political objective of joining the ANC to participate in the liberation struggle. Nathaniel did eventually join the ANC in Lesotho where he received military training and also joined the ANC's military wing, uMkhonto weSizwe.
In our view, the incident constitutes an act associated with a political objective as envisaged in the Act and Nathaniel has made a full disclosure of all relevant facts in regard thereto.
In the circumstances, amnesty is hereby GRANTED as follows:
1. to all of the Applicants in respect of the following offences committed on or about 5 February 1993 at or near Rockville in the district of Johannesburg:
1.1 assault and/or attempt to kill Mthimkulu Twala, Frank Sithole, Phanuel Tekanan and Bheki Mabuya;
1.2 murder of Matjebe Samuel Satekge;
1.3 attempted robbery of Matjebe Samuel Satekge;
1.4 unlawful possession of two AK-47 assault rifles;
1.5 unlawful possession of ammunition intended to be fired from a machine gun;
1.6 unlawful possession of a 9mm pistol and ammunition.
2. to Nathaniel Eric Mashene Tekane in respect of the theft of a motor vehicle during or about the period 1976 - 1977 at or near Bloemfontein. In our opinion, the next-of-kin of Matjebe Samuel Satekge are victims in relation to the murder and they are accordingly referred for consideration in terms of Section 22 of the Act.
Dated at this day of 2000
______DENZIL POTGIETER, A.J.
______CHRIS DE JAGER, A.J.
______ADV LEAH GCABASHE AC/2000/120
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.
______
HENDRIK JOHANNES PETRUS BOTHA 1ST APPLICANT
(AM 41/7/96)
MARIUS GREYLING 2ND APPLICANT
(AM 8027/97
KARL DURR 3RD APPLICANT
(AM 8029/97)
FRANS STEPHANUS BOTHMA 4TH APPLICANT
(AM 8030/97)
______
DECISION
______The Applicants, all erstwhile members of the Security Branch in Durban, apply for amnesty for the assault ("torture") of Messrs Pravin Gordhan and Raymond Lalla on or about 13 July 190 at or near Bethlehem in the Free State.
Both the aforementioned victims were held for questioning in terms of the Internal Security Act at the offices of the Security Branch at Bethlehem to where they had been transported from Durban where they had originally been detained. They were being questioned in regard to the ANC operation, generally referred to as "Operation Vula", in Kwa-Zulu Natal, more particularly with a view to obtaining the name of a suspected "mole" within the ranks of the Security Branch.
It is common cause that the victims were political activists engaged in furthering the cause of the ANC/SACP Alliance and that the incident took place during the later stages of the political struggle.
The victims, who appeared in person at the hearing, put questions to the applicants in cross-examination, but elected not to testify. They opposed the application of the first applicant, Botha, but did not express opposition to the applications of the other three applicants who acted upon the orders of the first applicant and assisted him during the interrogation and assault on the victims. All the applicants testified under oath.
The opposition to Botha's application, as expressed by Mr Gordhan, can be summarised as follows:
1. The applicant did not make a full disclosure, particularly around the arrest of Mr Charles Ndaba who was a key figure in Operation Vula and who was killed by the Security Police.
2. There was no political objective on the part of Botha and his actions were the result of a personal choice and style and a manifestation of personal vindictiveness. 3. There was no proportionality in the relationship between the information requested from the victims during the interrogation and the techniques of assault used.
From the evidence given by the applicants and the questions put to them by the victims during cross-examination, it is evident that the assaults took place by way of a method of suffocation in that the victims were wrapped in a blanket and then suffocated by means of a "sack" or towel or possibly some other instrument placed over their heads. In the case of Mr Lalla, this resulted in an asthma attack and the assault was terminated almost immediately.
Medical assistance was rendered to him. In the case of Mr Gordhan, the assault, according to Botha, lasted approximately 10 minutes and according to Mr Gordhan, as put in cross-examination, about 30 to 50 minutes. Another issue which emerged from the cross-examination was the reason why the victims were taken from Durban to Bethlehem.
The Committee carefully considered the objections raised by the victims and came to the conclusion that there is no evidence before it to suggest that the acts under discussion were not committed with a political objective as required by the Promotion of National Unity and Reconciliation Act, 34 of 1995, hereinafter referred to as the "Act".
As regards the requirement of full disclosure, the Committee is of the opinion that the circumstances regarding the arrest of Mr Ndaba is peripheral to this incident and not a material issue in so far as this application is concerned. The question as to why the victims were taken to Bethlehem, being such a long distance from Durban where the holding cells were allegedly full, caused the Committee some difficulty, but we find that this is not such a material issue as to preclude the granting of amnesty, especially not in the absence of evidence indicating that the applicants were not telling the truth.
The duration of the assault, in the opinion of the Committee, is the one issue which may have a direct bearing on both the requirement of full disclosure and the question of proportionality. In both the case of the applicant Botha and the victim Mr Gordhan, the duration of the incident suggested by them were based on estimations, if one further takes into consideration that, according to common human experience, the duration of "torture" would feel much longer for the victim than the perpetrator, there is nothing before the Committee to warrant a finding that the applicant was deliberately hiding the truth in this regard. If this be so and in the absence of the Committee finding that the assault lasted for an extraordinarily long time or was of a particularly savage nature, the question of proportionality automatically falls away.
The Committee further finds that there were no inherent improbabilities in the evidence of the applicants. Minor contradictions are such that one would expect from witnesses attempting to recall what happened about nine years ago.
The Committee is therefore satisfied that all the applicants have complied with the requirements for amnesty as set out in the Act and accordingly amnesty is GRANTED to:
1. Hendrik Johannes Petrus Botha for the assault on Pravin Gordhan and Raymond Lalla at or near Bethlehem on 13 July 1990.
2. Marius Greying for the assault on Pravin Gordhan and Raymond Lalla at or near Bethlehem on 13 July 1990.
3. Karl Durr for the assault on Pravin Gordhan and Raymond Lalla at or near Bethlehem on 13 July 1990.
4. Frans Stephanus Bothma for the assault on Pravin Gordhan and Raymond Lalla at or near Bethlehem on 13 July 1990.
Messrs Pravin Gordhan and Raymond Lalla are declared victims in terms of section 14 of the Act and referred to the Committee on Reparation and Rehabilitation for its consideration.
Dated at this day of 1999. ______JUDGE S MILLER
______ADV F J BOSMAN
______MR ILAN LAX AC/2000/121
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.
DANIEL BENJAMIN SNYDERS 1ST APPLICANT
(AM 0074/96)
JAN PETRUS KRUGER 2ND APPLICANT
(AM 2734/96)
MARTHINUS CHRISTOFFEL RAS 3RD APPLICANT
(AM 2735/96)
DECISION
1. INTRODUCTION
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The applications relate to a number of incidents, involving different configurations of Applicants, which are dealt with separately below. It is necessary to set out the political context of the incidents in question.
2. POLITICAL CONTEXT
During the period 1982/1983 tensions developed in the ranks of the ruling Nationalist Party ("NP") on fundamental issues of policy and the future direction of political developments in South Africa. This ultimately led to a major realignment in white politics in the country. Broadly speaking there were two main schools of though developing among the ruling white political elite. The one faction saw their continued survival in a strict adherence to the policy of racial segregation and the other was prepared to explore the possibilities of moving away from the then prevailing policy of apartheid or racial segregation. The former faction eventually broke away from the NP and formed the Conservative Party ("CP") which represented a part of the white right-wing. This move did not ease the tensions between the two groupings. The NP government continued on its course of moving away from the policy of apartheid which was regarded by the CP as a treasonous capitulation to black political demands which will result in the country being handed over to communists. In response to this perceived threat, the white right-wing started organising itself in order to create structures that would ensure the safety of its members and the protection of their property. In this vein structures such as neighbourhood watches and surveillance groups ("verkenningsgroepe") were formed in various areas. An organisation which is of particular importance for present purposes is the secret right-wing organisation, "Toekomsgesprek" (literally Future Talks) which was also formed in this context. As the political situation progressively deteriorated from the right-wing perspective, radical talk and an inclination towards violence increased exponentially in its ranks. Elements from the military joined in and introduced their own professional skills, such as the manufacture of explosives and the like, into these structures which showed phenomenal growth and now accommodated a wide range of right-wing views and sentiments.
It was against the background of this volatile situation in right-wing circles, that matters came to a head when the NP government unbanned the liberation movements in February 1990. The right-wing saw the writing on the wall and had the insight to realise that the natural next step would be the enfranchisement of the black majority and eventual black majority rule in South Africa. They saw in this very probable development, the total destruction of their values and way of life.
The situation of the Applicants, all members of the right-wing at the time, calls for closer scrutiny.
3. POLITICAL PROFILES OF THE APPLICANTS
First Applicant, Daniel Benjamin Snyders ("Snyders") was deeply involved in the affairs of the right-wing and CP since its formation during the period 1982 - 1983. He was tasked to organise all right-wing organisations in the country into the neighbourhood watch system. This would result in a vital network which could be exploited for many purposes. The importance of this assignment is emphasised by the fact that Snyders received his instructions directly from a member of the CP National Council.
During the period 1984 - 1985 Snyders was assigned to the Commandos in Nelspruit where he was appointed as Company-Commander in his region. He maintained close contact with other right-wing organisations such as the Afrikaner Weerstands Beweging ("AWB") and the Herstigte Nasionale Party. During the same period he was sworn in as a member of "Toekomsgesprek" and assigned to the defence interest group ("Verdedigingsbelangegroep"). Snyders was invited to the people's convention ("Volksberaad") which was organised by the CP for 6 April 1990. This initiative was effectively highjacked by "Toekomsgesprek" in order to ensure that its members occupy strategic positions in the various interest groups to be formed at the convention. Snyders joined the national defence group of approximately 30 members formed at the convention. The objective of the group was to establish secret cells, give members military training and to stockpile arms and explosives. "Toekomsgesprek" was the backbone of these operations. It was a secret organisation which could be joined on invitation. Many members of the CP leadership were involved in the organisation which was closely linked to the CP. Snyders' participation in these structures led to his involvement in the incidents forming the subject-matter of these applications.
Second Applicant, Jan Petrus Kruger ("Kruger"), was also an active member of the CP having joined the party in 1982. He later also joined "Toekomsgesprek" where he was assigned to the defence structure with the objective of rendering the country ungovernable. At the suggestion of the "Toekomsgesprek" leadership, he underwent training in the manufacture and handling of explosives with a view to committing acts of sabotage. He became involved in the incidents forming the subject-matter of these applications through his activities in these right-wing organisations.
Third Applicant, Marthinus Christoffel Ras ("Ras"), was a member of the AWB since 1983 and joined the CP in 1989 after he met Kruger. He was subject to assessment for membership of "Toekomsgesprek" and was invited to some of its meetings which he attended. It was in this context that he became involved in the attacks to which the application relate.
4. INCIDENTS APPLIED FOR
The applications relate to various incidents and Applicants are facing criminal prosecution in respect of most thereof. Snyders is facing a civil claim in respect of two of the incidents. The different incidents will now be dealt with separately:
4.1 Attack on Sabie Magistrate's Court
On 20 December 1991 Kruger and Ras caused an explosion at the Sabie Magistrate's Court on the instructions of a member of the "Toekomsgesprek" leadership, Douw Steyn, conveyed to them by Snyders. The explosives used were manufactured by Snyders. The buildings were damaged but no death or injuries resulted from the explosion. Applicants are presently facing a charge of sabotage pursuant to this incident.
4.2 Attack on Lowveld High School
Kruger and Ras caused an explosion at the school situated in Nelspruit on 1 January 1992 with explosives manufactured by Applicants. The attack was launched on the instructions of Douw Steyn as conveyed by Snyders. The building was damaged. Applicants are facing a charge of sabotage pursuant to the incident.
4.3 Attack on Nelspruit Agricultural College
During the period 14 - 15 March 1992, Snyders was involved in an attack at the college with explosives causing damage to the property. The attack was launched on the instructions of Douw Steyn. Snyders manufactured the explosives and furnished the same to another member of "Toekomsgesprek" who executed the actual attack. Snyders is presently facing criminal charges as well as a civil claim pursuant to the incident.
4.4 Attack on Nelspruit High School
Snyders planted explosive devices which he manufactured at the school during the period 14 - 15 March 1992 which were primed to detonate simultaneously with the explosives placed at Nelspruit Agricultural College. There is a dispute between Snyders and his brother, Louis Snyders, in regard tot he alleged role of the latter in the incident. It is not necessary for the purposes of this decision to resolve this issue.
Unbeknown to Snyders and due to some defect in the detonator, the devices did not explode simultaneously with those at the Agricultural College. Although Snyders monitored the explosions, he was misled by the sheer force thereof into believing that the devices at both premises in fact detonated during the explosion that he heard. During the course of the morning on 16 March 1992 a gardener at the high school discovered the devices which exploded after he handled the same. The gardener, Chashasa Andries Sithole, was killed in the explosion and another person, Sophie Mashaba, was injured. Two vehicles, a caravan and certain equipment on the premises were damaged in the explosion. All reasonable steps were taken to avoid any loss of life or injuries in the operation. The explosives were primed to detonate at 03h00 when no-one would be present on the school premises. Snyders and his colleagues were shocked at the death and injury that resulted from the incident which were never intended. He expressed remorse at these consequences of the explosion.
Snyders acted on the instructions of Douw Steyn in placing the explosives at the school. He is presently facing various criminal charges including murder and attempted murder as well as a civil claim pursuant to the incident.
4.5 Stockpiling of Arms and explosives
Subsequent to the arrest of Applicants various caches of arms were discovered by the police on farms in the vicinity of Nelspruit and Sabie. One of the farms belonged to Kruger. Various charges have been brought against the Applicants as a result. The arms and explosives in question were stockpiled on the instructions of the leadership of "Toekomsgesprek" in accordance with its policy of preparing for armed resistance against the political reforms introduced by the NP government at the time. Ras has not been involved in any of these activities and is not seeking amnesty in regard thereto, save for the possession of the explosives used at Lowveld High School and the Sabie Magistrate's Court.
5. EVALUATION OF THE APPLICANTS
We are satisfied that Applicants made a full disclosure of all facts relevant to the applications. None of the implicated parties including Douw Steyn appeared at the hearing. Only one of the interested parties submitted an affidavit in regard to the matter. This does not take the matter any further, save to support the Applicants on the political context of the incidents and their possible subjective political beliefs at the time.
In considering the question whether Applicants' actions constitute acts associated with a political objective, we take into account that they acted on the orders of one of their superiors within "Toekomsgesprek" and that the attacks fell within the policy of that organisation at the time. Although membership and the activities of "Toekomsgesprek" were secret, we are satisfied that it was a publicly known political organisation even though not widely known, independent from the CP whose policies did not include the kind of offensive, violent actions undertaken by the Applicants. Insofar as the death of Mr Sithole and injuries of Mrs Mashaba are concerned, we take into account that all reasonable steps were taken to avoid this kind of consequence from following the attack in question. The unfortunate death and injury are aberrations which could not reasonably have been avoided. We take into account in this regard that the attack was solely aimed at state property which was seen as representing the Applicants' political foes. In the peculiar circumstances of this case, we are satisfied in spite of initial reservations, that the death and injury ought to be included in the otherwise patently politically motivated conduct which ought to be covered by any amnesty which may be granted. We are accordingly satisfied that all of the actions undertaken by Applicants as set out above, constitute acts associated with a political objective as envisaged in the Act.
In the circumstances amnesty is hereby GRANTED to Applicants in the following terms:
1. in favour of Daniel Benjamin Snyders in respect of:
1.1 all of the offences set out in the annexed indictment marked "A" issued in the Transvaal Provincial Division of the High Court including any delicts encompassed in the said offences;
1.2 all of the offences set out in the annexed charge sheet marked "B" issued in the Nelspruit Regional Court under case number SH84/92 including any delicts encompassed in the said offences.
2. in favour of Jan Petrus Kruger in respect of all of the offences set out in the charge being Annexure "B" hereto, including any delicts encompassed in the said offences.
3. in favour of Marthinus Christoffel Ras in respect of:
3.1 all of the offences set out in the charge sheet being Annexure "B" hereto, save for counts 3 and 4 and the alternative charges thereto, including any delicts encompassed in the offences for which amnesty is hereby granted;
3.2 unlawful possession of explosives on or about 20 December 1991 at or near Sabie Magistrate's Court;
3.3 unlawful possession of explosives on or about 1 January 1992 at or near Lowveld High School, Nelspruit.
In our opinion Sophie Mashaba and the next-of-kin of Chashasa Andries Sithole are victims in relation to the relevant acts for which amnesty is hereby granted and they are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED AT CAPE TOWN THIS DAY OF JULY 2000.
______
JUDGE DENZIL POTGIETER
______
ADV N SANDI
______
MR J B SIBANYONI AC/2000/122
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.
VAKELE ARCHIBALD MKOSANA 1ST APPLICANT
(AM 4458/96)
MZAMILE THOMAS GONYA 2ND APPLICANT
(AM 7882/97)
DECISION
Introduction and Background
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act").
The applicants are former members of the then Ciskei Defence Force ("CDF"). They are seeking amnesty for the murders and attempted murders of several persons who were shot and killed by CDF members at Bisho on 7 September 1992 ("the Bisho Massacre"). Over 100 CDF members were involved in the shooting. The incident occurred when leaders of the ANC - SACP - COSATU Alliance ("the Alliance") organised a march to Bisho and several thousands of their supporters participated. The marchers were demanding the resignation of Brigadier Oupa Gqozo and that Ciskei be placed under an interim administrator, pending the outcome of the historic negotiations at the World Trade Centre which eventually ushered in a new constitution for the Republic of South Africa ("RSA"). We hasten to point out that at the time peaceful marches and demonstrations were commonplace in many parts of the country. It should be mentioned that the Bisho Massacre was previously dealt with at two prolonged Special Hearings of the Human Rights Violations Committee (HRVC) of the TRC. The Goldstone and Pickard Commissions and a CDF Internal Board of Inquiry also looked into the matter. The hearing of testimonies on the present applications was expedited by the availability of transcripts of the evidence and submissions that were made in these fora, a great deal of which is common cause and warrants no detailing. The HRVC has already made victim findings in the matter. It is only necessary for us to give a brief summary of the incident.
The procession was to commence from the King William’s Town Victoria Sports Grounds which fell under the jurisdiction of the R.S.A. Bisho was the administrative capital of the Ciskei, an "independent homeland" under apartheid. Ciskei was under the rule of Brigadier Gqozo whose administration was fiercely opposed by the Alliance and its supporters. Gqozo, having come to power in 1990 in a coup d'etat, lacked the necessary support and co-operation from a very large section of the inhabitants of the area. The period leading up to the massacre saw widespread incidents of violence between supporters of the Alliance and those who were perceived to be supporting and protecting the Ciskeian regime. CDF and Ciskei Police Force ("CPF") members were targeted and forced to leave their homes. It needs to be stressed that the Ciskeian regime, in spite of its lofty Bill of Rights which guaranteed inter alia the right to freedom of association and assembly, was not readily prepared to allow demonstrations which it saw as a threat to oust Gqozo and his Council of State. Demonstrations, albeit peaceful, were frequently, dispersed with brute force and applications for the necessary permits would be refused. When the organisers of the march requested a permit they had to go through many hurdles before it was finally granted, often subject to stringent conditions. At first the authorities completely refused to allow the march to enter the Ciskei and later, after intensive shuttle diplomacy by members of the National Peace Secretariat, it was agreed that the marchers could enter Bisho. They were, however, to confine themselves to the Bisho Stadium and were not to enter the Central Business District ("CBD") where they originally wanted to hold the demonstration. The protest was to take place between 12h00 and 16h00. This compromise on the part of the Ciskeian authorities was preceded by several events which it is necessary to detail in the light of the justification by applicants and their superiors of the actions of the CDF on the day of the incident. At some stage an urgent application for an interdict was brought by the Ciskei Commissioner of Police against the Alliance, seeking an order to compel them not to proceed with the march. At the same time a counter-application was launched by the Alliance for a mandamus to compel the Chief Magistrate of Zwelitsha to grant the application. (Ciskei security laws required that such applications be made to a Chief Magistrate). Finally, it was ruled by the Magistrate that a permit would be granted, but subject to the aforementioned conditions. It is clear that the Alliance leaders were determined not to adhere to the restrictions which they saw as unreasonable and a violation of their right to peaceful protest.
On the day of the march CDF and CPF members were deployed at various points in Bisho to monitor the movements and activities of the marchers. CDF members were deployed at Jongilanga Crescent; at the University of Fort Hare Bisho Campus; at the Ministerial Complex and the Assembly Buildings. In addition to these arrangements there was a helicopter which was monitoring the movements and actions of the marchers from the air, and binoculars were used to have a clear view of the situation. Both applicants were part of the Jongilanga Crescent troops. Members of the National Peace Secretariat were also present. Members of the South African Police (SAP) and Defence Force (SADF) monitored the movements and actions of the marchers on the South African soil. There were no incidents en-route to Bisho. The Applicant Mkosana was the Field Commander of all the soldiers and platoons on the ground. He took orders from the Deputy Commander Colonel Van der Bank, with whom he was able to communicate with a radio. Colonel Marius Oelschig was the Chief Commander and Van der Bank took orders from him. Mkosana was also able to make radio contact with commanders in charge of the different platoons. He had no contact with the helicopter and, for all intents and purposes, the CDF was effectively the first line of defence. Amongst the arms that were issued to their soldiers were R4 rifles, LMG hand grenades and grenade launchers. According to Mkosana the Ciskei intelligence services had received a rumour that at the march CDF members were going to be attacked by cadres of Umkhonto weSizwe ("MK"), the military wing of the ANC which led the Alliance. So much for the background. We now proceed to deal with the evidence of each applicant.
1. VAKELE ARCHIBALD MKOSANA ("MKOSANA")
He joined the CDF when he was 21 years of age and regarded it as his duty to carry out orders from his superiors. He was a professional soldier with a call to ensure the security of the State and safety of the police and he was aware that the Alliance was preparing a march "to take over the Ciskei". Initially he was informed that the Ciskei authorities were taking an uncompromising and stubborn attitude on the matter and the CDF was under no circumstances going to allow the march to proceed beyond the borders of South Africa and enter the Ciskei. However, on the morning of the march, he was informed that the marchers had been granted a permit to enter the Ciskei but would under no circumstances be allowed to proceed beyond the Bisho Stadium. In the light of the existing political tensions and their lack of experience in crowd control, soldiers were very much in fear of their lives. Although on previous occasions it had appeared to him that the marchers were peaceful, this still did not remove his fear of CDF members being overrun and killed.
Whilst positioned at Jongilanga Crescent he observed a crowd of about 100 000 people steadily flowing into the stadium. Suddenly, he observed a group of about 200 to 300 marchers breaking out of the stadium through a gap in the fence. They were charging aggressively in the direction of the Jongilanga Crescent troops in an attempt to bypass them and stage the demonstration in the CBD. At that point no police contingent had been deployed and his troops were going to be the first line of confrontation. He estimated that from the gap to the point where his troops were positioned was a distance of about 200 metres. He suddenly heard two shots but did not see who was firing and at whom. He concluded that it must have been the marchers shooting at them. He reported his observations and the sound of gunshot to Van der Bank over the radio. The latter replied that if they were being fired at by the crowd, they should also return fire ("skiet terug"). At that stage the crowd was getting very close to Mbina, the commander of the Jongilanga Crescent troops. Having received what he conceived to be an order from Van der Bank, he immediately ordered: "Fire with minimum force!". He says he was only referring to Mbina who ten conveyed the order to his troops. It is common cause that when Van der Bank received the report from Mkosana he contacted Oelschig who authorised the shooting, but it is clear that Oelschig was only giving an order in respect of those soldiers who were allegedly under fire, namely the Jongilanga Crescent platoon. At the time Van der Bank was observing the crowd from the roof of the Parliament Buildings.
Mkosana says although he never intended the order to be a command to all the platoons, when the Jongilanga Crescent platoon started firing, all the platoons fired. This was in spite of the fact that none of the other platoons were in danger of being attacked. The so-called break-away group of marchers was only advancing in the direction of the Jongilanga Crescent platoon. At the end of the volley of shots which ensued and continued even when the marchers were fleeing, 28 people were killed and at least 300 injured. The troops were not only firing at the breakaway group that was led by Mr Ronnie Kasrils, one of the prominent leaders of the Alliance. They were firing in the general direction of all the marchers, including those who were still in the process of entering the stadium and those who had not even exited. The amount of chaos and confusion was such that loud calls by Mkosana to cease fire were unheeded. One would imagine that his difficulty was further compounded by the fact that he did not have a loud hailer to make himself heard. He says the extent of the confusion necessitated that he physically go to all platoons and order them to stop the shooting. After the shooting he was told by Mbina in the presence of the Applicant Gonya that during the shooting the latter had fired a rocket launcher. Although he was only a few paces away from Gonya he had not observed him doing so. Gonya was not reprimanded for his misconduct. Mkosana is adamant that when he issued the order he was not referring to Gonya. He testified that he was only referring to those members of the Jongilanga Crescent platoon who were armed with rifles. He takes no responsibility for the conduct of Gonya and the shooting by members of other platoons. They were not acting under his orders.
There are serious contradictions between the versions of the two applicants and we shall deal with these when we summarise the evidence of Gonya.
Under cross-examination Mkosana admitted that he never saw any one of the marchers carrying a firearm. he had not seen any person firing a shot. Indeed subsequent investigations revealed that this was a very remote possibility as none of the marchers were armed and no shooting had occurred before the troops opened fire and even thereafter. No person or physical object had been struck by a bullet before Mkosana gave the order and both judicial commissions discounted any possibility of riflemen Nqabisa, who was shot and killed in the incident, having been shot by the marchers. The CDF internal investigation also did not make a finding to the contrary. Nqabisa was part of the Fort Hare Campus platoon. He was shot on the left side of his head. The probability is very real that he was shot by one of his fellow soldiers.
2. MZAMILE THOMAS GONYA ("GONYA")
Being one of the riflemen under the command of Mbina, he was issued with a grenade launcher and his instructions were to use it on orders from Mkosana. He testified that it was a very strong part of the military discipline and culture that a soldier could not just shoot without orders. He had not used a grenade launcher before. However, he knew it to be a very dangerous weapon which is normally used in war situations. On that day their platoon had two military vehicles. One was occupied by himself and Mkosana, and the other by Mbina. Whilst sitting behind Mkosana in the vehicle he overheard him speaking with Van der Bank on the radio. He was reporting that some of the marchers were coming towards them. And indeed this was the case because at that stage he had observed a certain group of the crowd marching out of the Bisho Stadium. They were coming in their direction towards the CBD. He had not observed anyone of the marchers carrying a weapon. Although he could not follow all the details of the conversation between Mkosana and Van der Bank, he was able to overhear the latter telling the former that he should tell him when this particular group of marchers pass a certain tree. This Mkosana did when the group came too close. Then he heard Mkosana giving them an order to shoot. This was an unqualified order and it was clear what they were being commanded to do excluded the use of minimum force. Mkosana shouted twice that they should fire and there was no reaction from the riflemen. He says they just looked at each other in confusion as they did not see the need to shoot. Being part of the broader Ciskei community, they were quite reluctant to open fire on what they saw as their own brothers and sisters. But when Mkosana shouted for the third time, frantically commanding that they open fire, they complied with the order and fired at the marchers. They were afraid of the consequences of not carrying out an order from a commander. When asked what at the stage he thought would happen (to them) if they did not comply with the order, he replied that they would have been killed by the marchers who were fast getting closer and closer. No warning shots were fired to induce the crowd to turn away. DECISION AND REASONS THEREFOR
There can be no doubt that the leadership of the Alliance and their supporters were quite determined to enter the CBD and vocalise their opposition to what they saw as a dictatorship of Brigadier Gqozo and his administration. It is also clear that they were very anxious to have the Ciskei reincorporated into the wider South Africa, so that the inhabitants of the area could at last exercise their right to vote for the first democratically elected government of the country. Judging by their conduct and various statements issued by some of the leaders of the Alliance in the media it is indubitable that they expected some form of resistance from the Ciskei Security Forces to prevent the gathering from taking place in the CBD. However, it does not seem that they expected such unbridled use of lethal force to crush what was clearly a peaceful march. It is our conclusion that in the circumstances it was totally unjustified for the CDF to use lethal force of a general and indiscriminate nature against the marchers. Save for a figment of imagination on the part of Mkosana, there is not a shred of evidence that CDF members were fired at by the marchers. The marchers were unarmed and their intentions were clear, namely to stage a peaceful march in the Bisho CBD, just as it was happening all over South Africa at the time. No property had been damaged and there had not been any report of attempts in that direction. Worst of all, Gonya says he never heard any gunshot before the order to shoot was issued. We reject as false and an exaggeration that shots were fired by one or more members of the crowd. Whilst we do not necessarily accept Gonya's evidence that he used the rocket launcher in execution of orders from Mkosana, we find his conduct totally inexcusable in the circumstances. Gonya testified that they as soldiers did not see the need to shoot and hesitated before they carried out the order. This shows that they appreciated that the order was so palpably wrong in the circumstances that it ought not to be obeyed. In any event, Mkosana denies having given him an order to use the rocket launcher.
The reckless conduct of the CDF troops that day is directly related to another factor, namely the existence of serious problems of discipline within the CDF. Senior CDF officers previously tendered testimonies to this effect. This view is fortified by the evidence that some of the soldiers who opened fire were not even on duty that day. The whole matter of conduct of foot soldiers in obedience to superior orders needs to be put into proper perspective. Although we generally accept that acts performed by foot soldiers in certain circumstances may be justified on the basis of carrying out orders, this is not a hard and fast rule.
In this regard we are also aware that this justification is recognised in many jurisdictions in the world as a special form of defence, for very obvious public policy reasons. What is, however, envisaged is a disciplined and not a trigger happy soldier. In any event, even if we were to accept the evidence of a gunshot having been fired from the crowd, the reaction of the CDF members, including the two applicants, was totally disproportionate to the objective of self-defence and to prevent the marchers from entering the CBD of Bisho.
There is no doubt that some of the marchers acted in breach of the conditions of the permit when they burst out of the stadium, but to simply open fire on everyone under the pretext of enforcing the conditions of the permit was totally unjustified in the circumstances. Indeed this reaction is so irrational and disproportionate that it cannot reasonably be accepted that the leaders of the group of marchers who left the stadium ought to or should have foreseen this reaction. The probabilities are that some warning would have been sufficient to cause the breakaway group on turn back.
It follows that we are not satisfied that the actions of Applicants constitute acts associated with a political objective as envisaged in the Act.
In the result amnesty is REFUSED to both the applicants.
SIGNED AT CAPE TOWN ON THIS DAY OF 2000
ACTING JUDGE D POTGIETER S.C.
ADV N SANDI
MR J B SIBANYONI AC/2000/123
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.
NKOSINATHI EMMANUEL NYAWUZA 1ST APPLICANT
(AM 7807/97)
ELIJAH NYAWUZA 2ND APPLICANT
(AM 3010/96)
FRANCIS TEKISI MEYIWA 3RD APPLICANT
(AM 4505/96)
FILBERT MAKHONYA NDIMANDE 4TH APPLICANT
(AM 6456/97)
DECISION
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The applications relate to the killing of Victor Lembede ("the deceased") in his shop at Ngonyameni Reserve, KwaZulu-Natal on Friday, 21 June 1991. All of the Applicants have been arraigned at different stages on a count of murder and attempted robbery arising out of the incident and were sentenced to long term imprisonment which they are presently serving. An exposition of the detail concerning the various trials and all of the charges brought against the different Applicants is not strictly necessary for purposes of this decision. Suffice it to say that the basis of the criminal trial, namely a murder committed in the course of an abortive planned armed robbery, differs radically from the case which the Applicants sought to make out before us. The case before us was that the deceased was killed in the course of a political assassination.
All of the Applicants, as well as a number of witnesses, testified at the hearing. The applications were opposed by the next-of-kin of the deceased.
The versions of Applicants coincide and were basically to the effect that they were either members or supporters of the African National Congress ("ANC"), save for Francis Tekise Meyiwa ("Meyiwa") who was a member of the South African Communist Party, at the time of the murder. They were involved in political activities, including the protection of their area, Zamani Reserve, against attacks from their political foe, the Inkatha Freedom Party ("IFP"). While they were present at a camp organised for the purpose of defending their area, Ernest Sipho Mahlanze (referred to in the evidence as "Mbambo") arrived and raised the problem of a person who was supplying arms to the IFP in the neighbouring Ngonyameni Reserve. This was on the Wednesday preceding the murder. According to Mbambo the culprit was a shopkeeper who had already supplied a variety of weapons to the IFP. The leader of the ANC in Zamani, Mr Mtambo, was present at the camp and immediately ordered a group of those present to eliminate the culprit, who transpired to be the deceased, on the coming Friday, 21 June 1991. The assassination had to occur at the deceased's shop which would be relatively safer than his home where he kept the weapons. Mtambo decided that Elijah Nyawuza ("Elijah"), one of the applicants before us and the father of a co-Applicant Ernest Nkosinathi Nyawuza ("Pops"), should be approached to supply the necessary transport to Ngonyameni. Mtambo in fact led a small delegation to Elijah's house and on their return confirmed that the transport was arranged.
On the day of the incident and after having received some firearms from Mtambo, the group of attackers set off to the shop of the deceased in Elijah's vehicle. The group consisted of Elijah, the driver, Mbambo who had to give directions to the deceased's shop and point out the latter to the assassins, Pops, Joseph Mkhize and the co-Applicants Filbert Makhonya Ndimande ("Ndimande") and Meyiwa.
Pops, Ndimande and Meyiwa were armed with firearms. After the group's arrival at the shop of the deceased, Elijah remained in the vehicle while the rest of the group alighted and proceeded on foot in the direction of the shop. Mkhize and Meyiwa stopped a distance away from the shop while the remaining three entered the shop and pretended to be customers in order to give Mbambo an opportunity to point the deceased out to the other two companions. After the deceased was identified the group left the shop and joined Mkhize and Meyiwa outside. Mbambo returned to the vehicle because he was at risk of being recognised by possible eye-witnesses as a former resident of Ngonyameni. The remaining four returned to the shop to execute the assassination. Pops and Ndimande entered the shop whilst Meyiwa and Mkhize kept a look-out near the entrance. When Ndimande drew his firearm inside the shop he was grabbed by someone in the shop and a scuffle ensued in which Ndimande lost possession of the firearm which fell on the floor. Pops witnessed the scuffle and realised that Ndimande was being dispossessed of his firearm. He fired one shot at the deceased and noticed that the latter was wounded. Ndimande ran out of the shop while Pops backed out keeping an eye on the persons inside the shop. They escaped from the scene in their vehicle which waited for them outside the shop. They reported the success of the operation to Mtambo and also returned the weapons which he supplied. The Applicants and Mbambo were subsequently arrested and tried. Mbambo was acquitted on the basis that he was acting under duress when he accompanied the group of attackers to the deceased's shop.
The remaining witnesses on the merits of the applications, contradicted Applicants' version. Two of the deceased's sons testified as to the general circumstances of the deceased. The evidence was briefly that the deceased was a 62 year old, diabetic who was in bad health and had to be transported around usually by one of his sons. The family was accordingly always aware of his movements and whereabouts. He was a well-known personality in the Ngonyameni area where he was a school principal and shop-owner. Although the family has some ANC ties, the deceased was committed to his work and business and was not involved in politics. He was not a supporter or member of the IFP and never supplied any weapons to that organisation. The deceased was the licensed owner of a pistol and a shotgun and possessed no other firearms.
The only eye-witness to the incident among the witnesses who appeared before us was the grandson of the deceased, Edgar Mkhungo ("Edgar"). He was a 21 year old technikon student at the time and helped out in the shop in the afternoons. They were approximately six persons working in the shop apart from the deceased. The incident occurred just before 17h00 on the Friday in question at a time when they were about to close the front entrance to the shop. They were only three shop assistants present in the shop together with the deceased at the time. The others had already left for home. As he was preparing to close the front door he noticed some people, whom he accepted to be customers, approaching the shop. He kept the front door open to allow them to enter and do their purchases. At some stage he went to fetch a key at the back of the shop for one of the other shop assistants, whereafter he returned to the entrance. He then became aware of a noise coming from the back of the shop and saw Ndimande, armed with a firearm, struggling with the deceased. Edgar went to the assistance of the deceased and grabbed hold of Ndimande trying to disarm him. In the course of the struggle a shot went off and Edgar managed to gain possession of the firearm. He ran towards the back of the shop and heard gunshots. When he looked back he saw the deceased falling to the ground near the shop counter. Ndimande then shouted to his companions to come and get the money. Edgar fired a shot at them and the assailants fled. He cannot identify any other members of the group of attackers. He had a very close relationship with the deceased and is unaware of the deceased's alleged involvement in supplying firearms to the IFP. In view of Ndimande's reference to the money, he concluded that the motive for the attack was robbery. On Fridays there was usually more money in the shop than on weekdays which would explain why the robbery was planned for late afternoon on the Friday. In his view the shot that he fired from Ndimande's firearm foiled the attackers' plan to execute the robbery.
Mbambo also testified at the hearing contradicting Applicants' version. He basically testified that the Applicants approached him a while before the incident and obtained information from him about the number of shops in Ngonyameni. They intended to rob these shops starting with the deceased's shop because, in their view, the deceased had a lot of money. Mbambo gathered that they knew the deceased as some of them were previously living in the Mbumbulu area where the deceased also used to have a shop which was later burnt down. Mbambo refused to participate in the plan. On the Friday of the incident he returned home from work and met the Applicants together with his neighbour, Joseph Mkhize, while they were parked under a tree drinking beer in Elijah's car. They indicated that they were waiting for Mbambo to take them to Ngonyameni to point out the shop of the deceased. Due to the fact that the vehicle was not roadworthy, they wanted Mbambo to direct them along certain back roads to Ngonyameni. None of them knew this particular route except for Mbambo. After Mbambo dropped off certain groceries at home, he went for a drink in a nearby shebeen. He was still busy drinking his first beer when Ndimande arrived with a firearm to fetch him. He was compelled to leave with Ndimande before even being able to finish his beer. He acted under duress in accompanying the group to the shop of the deceased. In the vicinity of the shop, the others alighted and went to the shop which was pointed out by Mbambo. He waited at the vehicle with Elijah. After a while they heard gunshots coming from the direction of the shop and Elijah drove in that direction, leaving Mbambo behind. The latter started walking back in the direction from which they came earlier. He intended to sleep at his parent's home, should he not get a lift back to Zamani. After a while Elijah's vehicle arrived and Mbambo returned to Zamani with them. Mbambo was later tried with Meyiwa and Ndimande and was acquitted on the basis of duress. He denied having informed the Applicants or anyone else that the deceased supplied firearms to the IFP. He was quite emphatic that the Applicants planned to rob the shop of the deceased and that this was their sole reason for visiting Ngonyameni on the day in question. The deceased was his school principal and he has no knowledge of the former being associated with any political organisation. He confirmed that the deceased had difficulty in walking as testified to by members of the latter's next-of- kin.
We have been extremely favourably impressed by the evidence of Edgar. Mbambo also impressed us as a good witness. We find no reason not to accept both their versions as the truth. The Applicants, on the other hand, have not made the same favourable impression on us. Elijah, at one stage, withdrew his application for amnesty. He claimed to have done so as a result of undue influence exerted on him by one of the Amnesty Committee's investigators. He, moreover, denied at first having made a statement to the investigator but subsequently confirmed the statement dated 9 December 1998 forming part of the papers before us, however, still disputing material aspects thereof. At the end of his testimony he had all but abandoned his attack on the statement in question. The leader of evidence, Ms Thabethe, called both Ms Mkhize, the investigator who took the statement in question, as well as Mr Cele, the one allegedly responsible for intimidating Elijah, to testify. This evidence indicated that both investigators were present when the statement in question was taken from Elijah by Ms Mkhize. At some point in the discussion Mr Cele, who was previously a member of the detective branch which investigated the murder of the deceased at the time, mentioned this fact to Elijah. It transpired that Mr Cele had some knowledge about the facts of the incident. After this discussion between Elijah and Mr Cele, the former suddenly indicated to Ms Mkhize that he wished to withdrew his amnesty application. This fact is reflected in the statement in question. Mr Cele furthermore denied having intimidated Elijah. We have no hesitation in accepting the evidence of Ms Mkhize and Mr Cele to the effect that the statement reflects what Elijah had related to Ms Mkhize and that Elijah voluntarily decided to withdrew his application for amnesty, without any improper actions on the part of Mr Cele. The evidence of Elijah is rejected where it conflicts with the version of these witnesses.
There are other unsatisfactory features in the version of Applicants. They failed to tender a satisfactory explanation for deciding to assassinate the deceased at his shop where the possibility of eye-witnesses being present was overwhelming. This factor lends further support to the evidence of Edgar and Mbambo that the plan was to rob the shop. Applicants' suggestion that it was safer to attack the deceased at his shop because the firearms were at his home, is fanciful. They failed to give any basis for this conclusion. There would have been every reason to expect that an alleged seasoned arms supplier to one of the contending political forces in the area would be armed at all times, particularly while present in his business premises. Applicants' actions in summarily attacking the deceased without reconnoitering his movements to ascertain when he would be most vulnerable, is highly improbable given their version that their sole objective was to eliminate a political adversary. This is more likely the actions of persons who intended to rob the shop rather than launch an attack on the deceased. The haste in which the decision was taken to eliminate the deceased, who was allegedly unknown to them, at great risk and on the mere unsubstantiated report of an individual, is so improbable as to be beyond the realm of belief. As already indicated, this evidence is of course contradicted by Mbambo who was supposed to have supplied the relevant information to Applicants about the alleged activities of the deceased.
Having carefully considered all of the evidence, we are satisfied that Applicants' version is untruthful where it conflicts with the testimony of the witnesses referred to above, particularly in regard to the reason for the attack on the deceased. We are satisfied that the deceased was killed in the course of an abortive attempt to rob the deceased's shop. It accordingly follows that the murder does not constitute an act associated with a political objective as envisaged in the Act. Applicants have, moreover, failed to make a full disclosure of all relevant facts.
In the circumstances the applications are REFUSED.
DATED AT CAPE TOWN THIS DAY OF JULY 2000.
JUDGE A WILSON
JUDGE D POTGIETER
ADV N SANDI AC/2000/124
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.
SIBUSISO ERIC NGCOBO APPLICANT
(AM 0588/96)
DECISION
The applicant applied for amnesty in respect of the following:
1. The murder of Bongani Wellington Majozi on 20 October 1991 at Slangspruit, Pietermaritzburg.
2. The attempted murder of Ndundu Absolom Cebekhulu, Michael Hadebe and Dumisane Welcome Makhathini on 20 October 1991 at Slangspruit, Pietermaritzburg.
The application was opposed by the family of the deceased and the victims in the attempted murders. It was conceded by the applicant, the victims and interested parties that Mr Sheabane Zuma, who was the Chairperson of the IFP in the region at the time would not be implicated in the events before the Committee and after being assured of that fact, his legal representative was excused from the hearing.
The only witness to testify before the Committee was the applicant. The Committee had great difficulties in following the applicant's version. At a stage it was suspected that the applicant and the interpreter had problems in understanding each other. It, however, became clear that the applicant had a problem in clearly expressing himself. He was educated up to Standard 3, has never worked and did not gain any experience in communicating with the outside world. This may also be the reason for the incoherent affidavits drawn up in prison on his behalf.
At the end of the day the Committee and the legal representatives were satisfied that the facts conveyed to the Committee (and which seemed to be common cause) could be summarised as follows:
During the late 1980's and 1990's, a war situation existed in the area. Violence, however, subsided during 1991 in the sense that battles in which two groups, the IFP vs the ANC, faced and killed each other, no longer occurred. Individual attacks and murders, however, still occurred. The Slangfontein, or Slenger area was divided into two distinct sections by a road running through the built up area. The ANC supporters predominantly stayed on one side of the road and the IFP supporters on the other. It was not safe for members of one party to enter the area of the other party.
The applicant and seven or eight of his friends visited a shebeen on 20 October 1991. The applicant was aggrieved and in his own words "tortured" by the fact that three of his brothers had been killed. Two of them, on the information he had, were killed by ANC supporters. The third was killed by a policeman who he believed also supported the ANC. Whether this was in fact so, cannot be concluded on the evidence. The fact, however, remains that he believed that to be the position. The applicant harboured the grief for a long time and resolved to avenge the death of his brothers. He was a supporter of the IFP and held all ANC supporters responsible for the death of his brothers. It was not a matter of revenge in the sense of tracing the murderers of his brothers and calling them to book, but political revenge in the sense of holding the ANC collectively responsible for the death of his brothers and killing any of its members in response to what had been done to him. The legal implications of this motive for killing will be dealt with later. The applicants and his friends continued drinking during the day and in fact dried the shebeen. When no further liquor was available, some of them decided to go to a nearby hostel to continue drinking there. The applicant called on all who were not so drunk that they couldn't participate in an attack on the ANC to join him and to cross the street into the ANC area to launch an attack on them. It transpired that two accompanied him, namely Themba and Mkize. The latter, according to the applicant, was sent back by him halfway across the street because he was too heavily under the influence to participate in the operation.
The applicant carried a gun which he claims was his own and not Themba's, as reflected in one of the affidavits prepared in prison. He was adamant about this and stated that the prison warder must have misunderstood him or misinterpreted him when assisting him to give particulars about the event.
The applicant crossed the road followed by Themba Dladla who carried a knife. They arrived at a shop, entered and the applicant shot the deceased who had tried to grab him, he then started shooting at random. He emptied the magazine which carried 16 rounds and in the result one person died and three were wounded.
The victims did not contest the above version. They opposed the application on the grounds that the attack was not politically motivated but was committed out or personal revenge and that he did not act on orders or with the approval of the IFP. Another factor to be considered was whether this was not spontaneous drunken behaviour by young men under the influence and not at all politically related.
The fact that the killings were to revenge the killing of the applicant's brothers should be seen against the background of the Kwa-Zulu Natal war situation. It could be argued that each and every killing in the area, except the very first one, was in revenge. The fact is that the first killing brought about a chain reaction and it would be impossible to distinguish which were offensive and which were defensive attacks. Later, attacks were all considered by the attackers to be justified as they were regarded as acts of retaliation. The fact that that applicant acted to revenge the death of his three brothers wouldn't make it per se out of personal malice. If it is justifiable to revenge your co-party member's death or your leader's death why should it be held against you if that co-party member of leader happens to be your brother?
Was this not only drunken behaviour? Liquor might have played a role but the undisputed fact that at least two of the applicant's brothers were killed by political opponents, must have haunted the applicant. It may be that the alcohol brought his grievances to the fore and that he gained Dutch courage to do what he did but that wouldn't neutralise the political hatred and render it an act not associated with a political objective.
A further major obstacle for the applicant to obtain amnesty is the fact that he did not obtain the approval of his party. He testified that he did not seek the approval of Mr Zuma, the IFP Chairman, because he knew it would not be given. This causes serious problems. The Committee is aware of the fact that the IFP constantly denied and still denies, that they ordered or approved any attacks on the ANC. They deny that it was at any stage part of their policy to engage in warfare or attacks on a political enemy. If amnesty should be refused on this ground then no IFP member would be granted amnesty in respect of attacks on ANC members. The same would apply to members of other parties who up to the present deny that they approved or condoned the deeds done by their members, and even to employees of the government in view of the government's denial of any knowledge of offences committed by them.
The Committee is not aware of any disciplinary steps having been taken against IFP members who in retaliation or otherwise killed or injured members of the ANC. The only conclusion to be drawn is that there was implied condonation.
In the result amnesty is GRANTED to the applicant in respect of the following offences:
1. The Murder of Bongani Wellington Majozi on 20 October 1991 at Slangspruit, Pietermaritzburg.
2. The attempted murder of Ndundu Absolom Cebekhulu, Michael Hadebe and Dumisane Welcome Makhathini on 20 October 1991 at Slangspruit, Pietermaritzburg.
The Committee is of the opinion that the next of kin of Bongani Wellington Majozi should be considered to be victims in terms of Section 26 of Act 34 of 1995, as well as Ndundu Absolom Cebekhulu, Michael Hadebe and Dumisane Welcome Makhathini.
SIGNED AT CAPE TOWN ON THIS DAY OF 2000
JUDGE A WILSON
ACTING JUDGE C DE JAGER
MR J B SIBANYONI AC/2000/125
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.
LULAMILE STEPHEN BALEKA 1ST APPLICANT
(AM 3849/96)
MNYAMEZELI DINGANI 2ND APPLICANT
(AM 3838/96)
DECISION
Both applicants, members of APLA, the military wing of the PAC, apply for amnesty for armed robbery, possession of unlicensed fire-arms and ammunition and kidnapping which crimes were committed on the 21 January 1994 at Nedbank, Caledon Street, Uitenhage. They were convicted of the said crimes on the 27 January 1995 and each sentenced to fifteen (15) years imprisonment.
The first applicant received instructions for Mzukisi Nazo, a commander of the Eastern Cape to rob Nedbank at Uitenhage after identifying the bank as a target. Such instructions were given during November 1993 and the following day he started with his reconnaissance and established how the personnel of bank arrived at the bank, who arrived first, how many they were, how they performed their duties and the situation inside the bank. He confirmed this by going inside on the pretext of getting change for R250.00. He further observed how money was handed over to tellers etc. He reported this to his commander and further that the operation would need six (6) cadres.
The first applicant was given the "go ahead" to repossess the money from the bank. He, however, conducted further reconnaissance and at one stage took one Nkrumah to reconnoitre the bank with and further established that the situation had not changed.
On the 20 January 1994 Nazo, the commander, brought small fire arms with which to spring the operation as the first applicant had indicated. He selected the five (5) comrades for the mission. On the morning of the 21 January 1994 they left in a combi they had hired and fitted with false number plates for Uitenhage from Port Elizabeth.
The first applicant stood guard outside the bank. At first the operation worked according to how he had planned. But whilst the others were inside the police appeared and foiled the robbery.
He gave a sign to those inside of the presence of police and he ran away back to Port Elizabeth.
The second applicant confirmed the testimony of the first applicant and testified that they had to use their discretion how to get away. They left money and used some of the bank personnel as human shields to escape and successfully did so.
Mr Samuel Bonakele Filita, of the top structure of the PAC, was called to testify as a witness for the applicants. He confirmed the applicants membership and how he recruited the first applicant. The PAC learnt of their arrest and the leadership could not do anything. The applications were not opposed but two of the bank employees, namely, Mr Shamien Salie and Ms Felicity Catherine Bellingham filed affidavits to the effect that the robbery traumatised them and would not attend the hearing and are leaving the decision to grant or refuse amnesty in the discretion of the committee.
There can be no doubt that the applicants were cadres of APLA. Their actions as set out above fell within the ambit of the policy of APLA and the PAC. We may mention that the Commission has had extensive evidence and received submissions detailing such policy and strategies.
We are therefore satisfied that the acts committed by the applicants are held to be associated with the political objective as envisaged by the Act.
With regard to full disclosure, we are satisfied that the applicants have made full disclosure of all material facts.
Accordingly we GRANT amnesty in respect of:-
(a) Armed robbery;
(b) Illegal possession of fire-arms and ammunition; and
(c) kidnapping.
We are of the opinion that Shamien Salie, Felicity Catherine Bellingan and Carmen Van der Merwe are victims and their matter is referred to the Reparation and Rehabilitation Committee to be dealt with in terms of Section 22(1) of the Act.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000.
JUDGE A WILSON
JUDGE S MILLER
JUDGE N J MOTATA AC/2000/137
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.
NZIMENI DANSTER 1ST APPLICANT
(AM 0040/96)
MONWABISI ERIC KUNDULU 2ND APPLICANT
(AM 0050/96)
DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). During 1989 the Applicants and Lollie Kwakwarie were convicted in the South Eastern Cape Local Division of the Supreme Court in case no. CC18/88 of the following offences which were committed on 6 February 1987 at or near Leeukloof Farm in the district of Cradock, Eastern Cape:
1. housebreaking with intent to rob and murder, with aggravating circumstances;
2. two counts of murder in respect of Mattheus Gideon Palvie and his wife Janetta Johanna Palvie;
3. robbery;
4. malicious damage to property; and
5. unlawful possession of firearms and ammunition.
The Trial Court imposed the death penalty on the Applicants, which sentence was subsequently commuted to life imprisonment.
The Applicants are seeking amnesty in respect of their said convictions. Although Lollie Kwakwarie had filed an application or amnesty he decided not to proceed with the application. He also declined to testify at the hearing in spite of the fact that he was implicated by Applicants. Both Applicants testified and no other witnesses were called.
The salient features of the undisputed versions of Applicants are as follows. They were resident in Cradock and were members of the Cradock Youth Association ("Cradoya") at the time of the incident. Their political affiliation is confirmed in letters addressed to the Committee by the Cradock Advice Office and signed by the chairperson of Cradoya and the treasurer of the Cradock Residents Association ("Cradora"). Cradoya was affiliated to the United Democratic Front ("UDF") which was an alliance of various political and civic movements in South Africa which supported the African National Congress ("ANC"). In response to a call by the ANC, Cradoya and other political organisations in Cradock formed self-defence units ("SDU") to defend the community against raids and attacks by the security forces. During these raids people in the township especially activists, were assaulted, harassed, arrested or even killed. Farmers in the area would often assist the security forces in these raids. Many of these farmers were either police reservists, former police officers or members of commandos.
The SDU and political organisations took a decision to obtain firearms which was the only effective means of retaliation or defence against these attacks and raids by the security forces who were themselves armed. It is a well-known fact that the Cradock area was embroiled in intense political conflict at the time.
On 5 February 1987 Applicants received an instruction from the commander of their SDU, Xolile Ben Sithungu, to go to Leeukloof Farm and attempt to obtain firearms there. Information was received from someone who had previously resided on the farm, that the farmer was a police reservist and that there was a cache of arms on the farm.
Later that day Applicants, Lollie and the son of the foreman on the farm, got a lift to the farm. Upon their arrival there they attempted to burgle the farm house but they were scared off by the barking of the dogs. They spent the night at the foreman’s house on the pretence that they came to participate in some celebration planned by the foreman’s son for the next day.
The following day, after the farmer, Mr Palvie, and his wife had left for Cradock which was approximately 20km from the farm, second Applicant and Lollie broke into the farm house and searched for weapons. They found one rifle which had no ammunition. They also found a police captain’s buttons in one of the trunks which they broke open. Second Applicant took the buttons to show to their commander as confirmation that the farmer was involved with the police. They left the house after about 2 or 3 hours leaving the rifle behind. The foreman’s son told them that the owner of the farm had taken some of the firearms to his house in Cradock, but that the farmer had two firearms. Applicants decided to wait for the farmer to return with the firearms which they intended seizing together with the farmer’s vehicle to transport them back to Cradock.
Applicants participated in the celebration at the foreman’s house. When they saw the farmer returning they quickly moved to the farm house. First Applicant and Lollie entered the farm house and Second Applicant stood guard. When the farmer and his wife entered the house they were attacked. Both of them died of their injuries. Second Applicant found a small firearm and the car keys in the handbag of the farmer’s wife. He fetched the farmer’s car and first Applicant loaded 2 suitcases full of goods into the car. The suitcases were packed by Lollie when they entered the farm house earlier the day. Lollie had the rifle which they found earlier and a wall clock which he loaded into the car. They drove to Cradock where they disposed of some of the goods and destroyed the vehicle. They were arrested soon after the incident.
Having carefully considered the applications and the evidence I am satisfied that Applicants have made a full disclosure of all material facts. They have given a clear and comprehensive account of the circumstances which gave rise to their visit to the farm as well as the incident on the farm and the subsequent events. Their evidence has not been gainsaid in any way and it accords with the objective facts established at their trial.
It is, moreover, clear that the Applicants were acting pursuant to orders from the commander of their SDU. Their actions in obtaining firearms were clearly in furtherance of the political struggle which the SDU’s and the Cradock community were engaged in. It is common cause that the Cradock area was engulfed in intense political conflict at the time. The objective in arming the SDU was clearly to prevent the security forces from inhibiting the political activity of the ANC aligned political organisations in Cradock.
Applicants were acting in their capacity as SDU members during the incident on the farm. Moreover, the farmer was seen as a legitimate target for attack because of his specific connection to the police and the role played by farmers in the raids by the security forces on the township in Cradock.
It should also be pointed out that although the order was to obtain firearms, the possibility was not excluded that the members of Applicants’ group might appropriate other items as well. In this regard the order of the commander was that the group should not argue among themselves but should bring any further items back to the commander to deal with. It would accordingly be unrealistic and unfair to split the incident up into different components and separate the theft of the other items from the theft of the firearms. The intention was to dispossess the farmer of items which could benefit the struggle which Applicants were engaged in. Dispossessing the farmer of the further items is therefore not so far removed from the overall objective of the Applicants as to disqualify this action for the purposes of granting amnesty. All of the actions of Applicants during the incident formed an integral part of the execution of the order from their commander. This includes the killing of Mrs Palvie, who was herself armed.
Since formulating this decision, the differing decision of the majority members of the panel had been brought to my attention. Suffice it to say that I have considerable difficulty in grasping the rationale of that decision which in any event in no way persuades me to alter any aspect of this decision.
I am accordingly satisfied that Applicants’ actions were associated with a political objective.
In the circumstances, I would GRANT amnesty to Applicants in respect of the offences, listed above, which they were convicted of.
In my opinion the next-of-kin of Mattheus Gideon Palvie and Janetta Johanna Palvie are victims in relation to this incident. I would accordingly refer the matter for consideration in terms of Section 26 of the Act.
DATED AT CAPE TOWN THIS THE 15TH DAY OF AUGUST 2000.
______
DENZIL POTGIETER, A.J. AC/2000/212
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.
EMMANUEL NKOSINATHI MAVUSO APPLICANT
(AM 7921/97)
DECISION
I have read the decision of my colleagues Potgieter AJ and Adv. Gcabashe. For the reasons set out below I cannot agree with the result.
After considering all the evidence I am convinced that the applicant made a full disclosure of all the relevant facts. The longer the hearing lasted, the more it became clear that those implicated by him were indeed the conspirators who planned to kill the late Mike Mcetywa who was the ANC chairperson at Pongola. The applicant was chosen to execute the murder because it came to their knowledge through Philemon Mtungwa, who worked with the applicant, that the applicant had received training in the use of fire arms. Philemon Mtungwa was the brother of Amos Mtungwa who was a member of the KwaZulu Parliament and an IFP leader in the area. There was an attempt to down play the IFP's involvement in politics at Piet Retief and Pongola at the time and the role that the implicated persons namely, the Mtungwa brothers Amos and Philemon, the Khumalo brothers Sam and Velaphi, Malebele Buthelezi and Rasta Mngcwango played in the IFP during the relevant period. It was testified that Rasta was a PAC supporter. It is, however, significant that it is common cause that a month or two after the assassination he was known to be the IFP chairperson in Pongola. It also transpired that the IFP had an office where the applicant was alleged to ask for pecuniary assistance for his trial after his bail was paid. It also became clear that applicant's attorney at the criminal trial was appointed by Petrus Ndlangamandla and that Sam Ndlangamandla and Sam Khumalo also played a role in this. Sam Khumalo was indeed a councillor serving on the local council at Pongola and accepted to be an IFP representative.
The Ndlangamandla name is indeed the praise name of the Mtungwa people and the person Petrus Ndlangamandla is also known as Petrus Mtungwa. It became clear that the implicated persons, none of whom had applied for amnesty, tried their utmost to protect the IFP and themselves from possible involvement and prosecution. The extent to which they were prepared to go was clearly illustrated by the dubious methods applied to obtain an affidavit from the applicant's father in an effort to explain their visit to the applicant at his father's house after his release on bail. I have no hesitation in rejecting their evidence where ever it contradicts the applicant's version. It is significant that the applicant's evidence is to a large extent corroborated by Krutchev Ndwandwe an ANC leader in the area whom I found to be a credible witness.
The applicant testified that he killed the deceased because he was requested to do so by Amos Mtungwa, Philemon Mtungwa, Sam Khumalo, Velaphi Khumalo, Sandisiwe Ndlangamandla and Malebele Buthelezi. As stated, although there was an attempt to down play their roles in the IFP, it is clear that all of them were in fact at the end of day closely associated with the IFP and served in local leadership positions in that organisation. They informed the applicant, who was a foot soldier member of the IFP, that they would arrange for his transport to Pongola, that they have chosen him for the task because he was unknown at Pongola and would not easily be recognised. This meeting took place in Pongola in the Wimpy Bar after the applicant was driven there in Amos Mntungwa's car by the Mtungwa brothers.
They further told him that they wanted Mike Mcetywa killed because he was the ANC chairman at Pongola and that he was causing lots of problems in the area. They furnished him with a fire arm. Two other persons, Krutschev Ndwandwe and a certain Erens, also prominent ANC members, were also ear-marked for assassination. He was told that the ANC is growing stronger and stronger in the area. He conceded that it wasn't IFP policy to kill people but "we were supposed to do this because my organisation agreed or wanted us to do it that way". He did not do it out of bad faith and considered Mr. Mcetywa to be a "perfect (legitimate?) target" in the struggle between the ANC and IFP. He later became aware that money was collected and IFP members made donations for his defence. He used to attend rallies of the IFP and was well aware of the political struggle. On being asked about the policy of the IFP on killings he repeatedly answered more or less in similar words:
"I will repeat again that the policy of the IFP is that we shouldn't kill and I don't think there is a single political organisation that allows its members to commit murder, but members do that, they do it on their own and that's why we get political violence in areas. And my area wasn't just the only area which was involved in political violence, other areas as well. We will hear about them over the radio".
It was a well known fact, widely published in the media that the ANC and IFP were at war with each other. This war continued notwithstanding calls from leaders for peace. It continued up to, and even after, the elections. If it had been a requirement of the act that amnesty can only be granted to people acting in accordance with official party policy or government policy, no IFP member or security force member for instance could be granted amnesty.
The applicant further testified in answer to a question about the struggle that he was involved in: "I think I have mentioned that I was going to come back and do as the people who were outside (of goal) were doing. If they were continuing with the struggle, I was going to join the struggle and if it was necessary to kill, I was going to kill, but if they were not, I was not going to. I know that after President Mandela took over, IFP and ANC were now in good relationships. I think I was going to take part in that process as well, like they are doing".
This to my mind clearly illustrates that the applicant was politically motivated and did not act because of any other motive. The fact that money was collected from IFP members, that attorneys were instructed by the local IFP leaders to act on his behalf is evidence of the IFP's approval and/or condonation of applicant's acts.
There is no evidence that the applicant himself or the deceased was involved in the taxi dispute. In any event that dispute was solved a month before the murder. It was further suggested that the applicant might have acted as a police agent. This too, was not substantiated.
Although there might not have been political killings at the time in Pongola, the political war between the ANC and IFP was not localised. Conflicts used to occur in neighbouring towns Ermelo, Piet Retief, Vryheid, Dundee etc. Killings were almost daily publicised in newspapers and over the radio. The applicant was told that the ANC is growing stronger and stronger in the area. According to him the killing of the ANC leader in Pongola in fact contributed to an IFP majority in the area and a decline in the growth of the ANC.
I am of the opinion that the applicant fall within the ambit of Section 20 (2) (a) and/or (f). It is true that a person like Amos (accepted to be "a well known IFP leader" in the area) did not have the authority to impose orders upon the applicant to commit murder. As a matter of fact nobody in the whole country could do so. That, however, is not a requirement of the act for the granting of amnesty. The applicant accepted him as an IFP leader who spoke on behalf of the party. He was in fact a speaker on public platforms on behalf of the party. It should further be born in mind that this order came from a group of people, all of them being involved in the local leadership of the IFP.
The belief of the applicant that he is acting on instructions of IFP leaders against a political opponent who was the leader of the opposing party in the area, is a fact and forms a factor in considering the criteria or guidelines set out in Section 20 (3) as to whether the offence was associated with a political objective. The subjective belief of the applicant, once established, is a factor that should be considered in applying the criteria set out in Section 20 (3) in the same way as the (subjective) motive of the applicant is a factor required to be taken into account in dealing with Section 20 (3) (a).
Although there was no local political uprising in Pongola, the ANC/IFP conflict was a national conflict and as such played a role in events throughout the country. This offence occurred while peace negotiations were going on but it is clear from inter alia the IFP's submissions to the TRC that violence continued through out that period.
There might be speculation about other possible motives for the murder and whether the offence was associated with a political objective but there is no credible evidence contradicting applicant's version that his act was in fact associated with a political objective.
In the result I conclude that amnesty should be GRANTED to the applicant as requested by him.
C DE JAGER AJ AC/2000/218
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.
______
XOLANI RUSSEL PHUNGULA 1ST APPLICANT
(AM6595/97)
THAMI THULANDI ZONDI 2ND APPLICANT
(AM4500/96)
______
DECISION
______
These are applications for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act").
A decision has already been handed down in the matters of A M Mhlambo AM4105/97, X B Tsotetsi AM2946/96 and M J Magula AM2949/96 which were heard contemporaneously with these two applicants. See Decision Number AC/2000/017.
In the said decision these two applicants were inadvertently referred to as implicated persons whereas in fact they were co-applicants.
All of the applicants testified at the hearing with regard to the same incident and the evidence of each applicant was corroborated by that of the others.
We are satisfied that these two applicants should be granted amnesty on the same grounds and bases as their co- applicants.
Having considered the matter, the Committee is of the view that Xolani Russel Phungula and Thami Thulani Zondi have satisfied the requirements of the Act and are GRANTED amnesty for the murder on 28th September 1991 of Thembisile Victoria Mthembu at or near Jabula Road, Enhlakakahle, Greytown, Umvoti District and the delicts which may flow therefrom.
The referral in terms of Section 22(1) of the Act was made in the decision referred to above.
DATED AT THIS DAY OF 2000. ______
JUDGE S M MILLER
______
MR J B SIBANYONI
______
MR I LAX AC/2000/219
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.
______
KGALITHA TSOTETSI APPLICANT
(AM7974/97)
______
DECISION
______
The applicant applies for amnesty in respect of the offences related to the overpowering of prison warders Van Rooyen and Komane and the holding of them as hostages in the Boksburg prison on 18 March 1994, the threat to set the prison on fire, assault and any other offences directly related to the above incidents.
It is common cause that the applicant was a member of the South African Prisoners Organisation for Human Rights, known as SAPoHR. This organisation is described in the preamble to its constitution as "a democratic and anti-racist, anti-sexist, politically non-aligned organisation, to campaign for the overhaul of the apartheid criminal justice and prison system and improve the conditions of those incarcerated in South African jails; to research and educate around humane and effective treatment of criminality; to research, organise, initiate and support prison change and seek redress for abused inmates, ex-inmates and their next-of-kin; to end economic exploitation by gaining the right for a prevailing wage for all work done in prison; to establish a uniform and equitable sentencing procedures, to restore civil and human rights to detainees, inmates, ex- inmates, their next-of-kin and others; and to work for shortening sentences and effective alternatives to imprisonment to ease South African prison overpopulation and provide a justice and correctional service that redress the crime and violence inherited from apartheid and thereby contribute to a culture of human rights and social justice in South Africa.
A copy of the constitution is annexed hereto. The Committee, however, wishes to refer to the following specific passages:-
2. 'SAPoHR's OBJECTIVES"
"Specific:
(i) to unite all South African inmates, ex-inmates and their next-of-kin for reintegration and re-education in all South African jails and to suppress all forms of apartheid, discrimination, corruption and oppression in and outside prison.
(ii) to defend the democratic rights and privileges of inmates, ex-inmates etc. and advance towards an environment in which the prison staff and inmates shall respect each other.
(x) to fight for the rights of inmates to vote for and/or be a member of any organisation of their choice.
3. CHARACTER OF SAPoHR
SAPoHR shall work closely with political, human rights organisation, civics, unions, social workers and religious bodies throughout the country and shall provide on a non-denominational, non-aligned basis for the recognition of the human, legal, political and spiritual needs of inmates".
MEMBERSHIP
Membership of SAPoHR shall be open to all citizens as laid out in the preamble regardless of race, ethnicity, colour, sex, gender, language, creed, religion or political affiliation and who accept the organisation's policies and programme and are prepared to abide by this constitution.
It is also common cause that SAPoHR in the run up to the 1994 election vigorously campaigned for the right of prisoners to vote in that election. This seems to be in accordance with the specific objective of the organisation quoted under 2(x) above. This campaign included mass action and demonstrations in the various prisons. According to the evidence the prison authority at the Boksburg prison was opposed to the demonstrations. This lead to resistance from the side of prisoners resulting to "threats to burn the prison and in the end to the kidnapping of the two prison warders, Van Rooyen and Komane and holding them hostage. This was as a result of an announcement by then President de Klerk that certain categories of prisoners would not have the right to vote in the general election of 1994.
Evidence was also given by Mr Miles Bhudu who testified that he was at the time president of SAPoHR and that he instructed and authorised the prisoners to do the kidnapping and the other offences in respect of which amnesty is sought. He also testified that he accepts full responsibility for the orders and that he requested Mr Maharaj of the ANC and Mr Benny Alexander (Khoisan X) of the PAC to meet him at the prison to acquaint themselves with the demands of the prisoners. According to him they supported the demand to vote on behalf of their parties. He further testified that he himself was a member of the ANC and that the public perceived SAPoHR to be affiliated to the ANC because of his close association with that political party.
The applicant testified that he himself did not know whether SAPoHR had any relationship with the ANC.
As far as the facts are concerned it would suffice to say that the hostages were freed by a task force and that they didn't suffer any serious injuries.
The Committee is satisfied that the applicant made a full disclosure of all the relevant facts pertaining to the offences and that his application form was timeously handed in and is formally in order. It is also clear that the protest was directed against the Department of Correctional Services and/or its employees acting on its behalf and as employees of the State.
The only question to be answered is whether the applicant acted as a member or supporter of a publicly known political organisation or liberation movement in support of such organisation or movement.
There can be no doubt that the applicant acted as a member of SAPoHR in support of SAPoHR. He didn't state that he acted on behalf of or in support of the ANC. Was SAPoHR a political organisation or liberation movement as envisaged by the Act 34 of 1995? A political organisation is not defined in the Act, neither is a liberation movement. The words organisation or a movement clearly reflect on a body of persons and would include a body like SAPoHR. SAPoHR's objective was inter alia "to fight for the right of inmates to vote for and/or be a member of any organisation of their choice." Apart from other objectives which are associated with the political field or objective, this clearly was an issue related to the conflicts of the past. The whole political struggle centred on the "right to vote".
According to the Oxford Dictionary, the meaning of political is:
1. (a) of or concerning the State or its government, or public affairs generally
(b) of, relating to, or engaged in politics.
(c) belonging to or forming part of a civil administration.
2. Having an organised form of society or government
3. Taking or belonging to a side in politics or in controversial matters
4. Relating to or affecting interests of status or authority in an organisation rather than matters of principle (a political decision).
The right to vote, would in our opinion, fall within the ambit of the above meaning.
It is also significant that the Act does not refer to a political party but to a political organisation. The legislature must have envisaged that there could be organisations acting in the political field that may not be political parties.
The Committee concludes that SAPoHR is an organisation which concerned itself with State affairs which included political matters such as the right to vote and the fight against apartheid vide "objectives - Specific (i)" supra. The offences committed by the applicant were associated with a political objective and he was a member of an organisation acting also on the political playing field in fighting for the right of prisoners to vote as well as other human rights.
Amnesty is GRANTED to the applicant in respect of the offences related to:-
1. the overpowering of prison warders Van Rooyen and Komane and the holding of them as hostages in the Boksburg Prison on 18 March 1994, and;
2. the threat to set the prison on fire, assault and any other offences directly related to the above incidents.
The Committee recommends that Abram Jeremia van Rooyen and Komane be considered to be victims in terms of Act 34 of 1995.
DATED AT THIS DAY OF 2000.
______
ACTING JUDGE S KHAMPEPE
______
ACTING JUDGE J MOTATA
______
ACTING JUDGE C DE JAGER AC/2000/220
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.
______
DANIEL LIONEL SNYMAN APPLICANT
(AM3765/96)
______
DECISION
______
The applicant applied for amnesty for defeating the ends of justice in that he caused a handgrenade to be planted in a car in order to cause the arrest of prosecution of MK members. This happened on the same occasion when askaris from Vlakplaas were used in a trap to arrest MK members who brought weapons into the RSA to be handed to ANC members operating on the Rand. It was arranged that the MK members would deliver the weapons to the askaris in Smith Street, Johannesburg.
The applicant was ordered by Captain Chappies Klopper to take up position in the nearby vicinity to be of assistance if anything went wrong. While parked a few hundred yards away, a woman crossed the street and while doing so, was robbed of her handbag by four men.
The applicant got out of the car and attempted to arrest them. They fled and he fired shots at them and wounded two of them. He managed to arrest one of the wounded men, called for an ambulance and while they were helping the wounded man into the ambulance, he heard shots from the vicinity where the weapons were to be handed over. This was not in accordance with the planning and he realised something must have gone wrong. He rushed to the scene and found that two MK members, one askari and six civilians were wounded. He met one of the askaris who pointed out the vehicle used by the MK soldiers and on looking into it, did not see any weapons. He had a hand grenade in his car, went to fetch it and handed it to one of the askaris with the instruction to put it in the car. The motive was to link the MK members to the possession of illegal weapons in case no other weapons were found on the scene or in their possession.
It later transpired, after a search of the vehicle had been executed, that other weapons were indeed hidden in the car.
The applicant stated that the act was associated with the political objective of protecting the askaris should it transpire that they had no reason for confronting the MK soldiers and for being involved in a shoot-out. This again would result in protecting the Security Police so that they could carry out their task of keeping the Government in power.
The Committee is satisfied that the requirements laid down by Act 34 of 1995 have been met and amnesty is GRANTED to the applicant for defeating the ends of justice by planting a handgrenade in a vehicle used by MK members in Smith Street, Johannesburg during or about 1990.
DATED AT THIS DAY OF 2000.
______
ACTING JUDGE C DE JAGER ______
ADV S SIGODI
______
MR J B SIBANYONI AC/2000/221
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.
______
PHUMAYAKHE MYAKA 1ST APPLICANT
(AM4440/96)
SMANEKWA MHLONGO 2ND APPLICANT
(AM4449/96)
______
DECISION
______
The applicants applied for amnesty in respect of the following offences:
1. Robbery with aggravating circumstances in that they robbed Jose de Freitas of R2 265.00, a wristwatch and keys at Denver on 22 February 1994.
2. For being in illegal possession of firearms and ammunition.
The applicants were found guilty and sentenced to 12 years effective imprisonment.
The applicants both testified and corroborated each other. According to them, they were hotel dwellers living in the Meadowlands hostel which was during the time a hostel predominantly occupied by supporters of the Inkatha Freedom Party. it was during the run-up to the first democratic election and it is common cause that political conflict between IFP members and ANC supporters resulted in a war situation.
The applicants testified that they fell under the jurisdiction of Induna Msomi and Botha Shwala was the leader Induna of the youth in the hostel and his deputy was Ngonda Ngema.
According to the evidence the applicants were summoned by Induna Msomi to come and see him. The two applicants, Themba Shelembe and Mkhwanazi, who were also asked to attend, met Msomi who informed them that the IFP was in need of money to buy weapons in order to defend themselves against ANC attacks and to be ready to carry out whatever instructions they might receive during or after the coming election. They were joined by the other two leading Indunas, Shwala and Ngema, and were told that the four of them, the two applicants, Shelembe and Mkwanazi, were to carry out a robbery at a bottle store at Denver, about 40 kilometres from where they stayed. The purpose was to rob the bottle store to obtain money in order to buy weapons for their organisation. The seven of them then planned the operation together. Msomi gave them money to go and do reconnaissance on a Sunday. He informed them about the procedure followed by the employees in the mornings when the bottle store is opened and instructed them to go in the morning, on Monday morning, to await the opening of the bottle s tore and to strike as soon as the employees entered the store. They were also given taxi fare for the operation on the Mondya.
On Monday everything went according to plan. They entered the bottle store and demanded money at gun point. The guns were handed to them by Msomi. The safe was unlocked and the money collected. Mkhwanazi had the money bag while they forced the three employees into a cold storage room, closed the door and stacked beer cases against the door to prevent the opening thereof. On leaving the bottle store, applicant Myaka saw a wristwatch and a bunch of keys and grabbed it. He considered the watch to be of monetary value which could assist in the buying of weapons and intended to lock the bottle store with the keys in order to keep the employees inside.
While they were leaving the business, Mkwanazi came rushing back and informed them that the security guard is coming. Mkhwanazi dropped the bag and Shelembe picked it up and they rushed out into the street. They were confronted by the security guard who was joined soon after by the three employees who managed to escape from the cold storage room. A shoot out followed, Shelembe was gunned down and the money was retrieved. The two applicants fled to the Denver hostel, which they knew was an IFP bastion, but were arrested before they could reach it. Mkhwanazi escaped and has not been seen since.
Myaka further testified that Msomi assisted him in paying half of his bail money and he believed that this came from the IFP. Mhlongo testified that he received no assistance at the trial from the IFP or Mr Msomi but that Msomi h as since assisted his family with maintenance in the amount of R600 per month. He believed that this money comes from the party's sources.
The Committee is aware that the IFP has consistently stated that they were not involved and did not associate themselves with violence or robberies. There is, however, abundant evidence in various applications that party members and supporters were involved in the inter-party warfare and that money was obtained by legal and illegal means for the purchase of weapons. Evidence was tendered on more than one occasion by supporters of the IFP) that hostel dwellers were engaged in this political war and it is accepted that illegal methods were used to obtain money for guns. In this process innocent and often non-political aligned people fell victim to robberies.
In the result, amnesty is GRANTED to both applicants in respect of:
1. Robbery with aggravating circumstances in that they robbed Jose de Freitas of R2 265,00, a wristwatch and keys at Denver on 22 February 1994.
2. For being in illegal possession of firearms and ammunition.
We are of the opinion that Mr Jose de Freitas is a victim as defined in the Act and hereby recommend that he be referred to the Committee on Reparation and Rehabilitation for consideration in terms of Section 26 of the Act.
DATED AT THIS DAY OF 2000.
______C DE JAGER (AJ)
______ADV S SIGODI
______MR J B SIBANYONI AC/2000/222
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.
______
AMOS TANKI TSHABALALA 1ST APPLICANT
(AM8050/97)
MDUBEKI JOHANNES NTANTISO 2ND APPLICANT
(AM6228/97)
______
DECISION
______
Amos Tanki Tshabalala (the 1st Applicant) and Mdubeki Johannes Ntantiso (the 2nd Applicant) apply for amnesty in respect of the murder of Barend Constant van Wyk (the Deceased), robbery and the unlawful possession of a firearm and ammunition, which offences were committed on 12th October 1993 at or near Sebokeng. In addition, the 1st Applicant applies for amnesty in respect of the unlawful possession of firearms and ammunition at or near Ennerdale during 1994.
Both applicants were, at relevant times, members of the Pan Africanist Congress (the PAC). The had both received military training in Transkei and were members of the Task Force. They were both members of a unit which was based in Sebokeng. The 2nd Applicant was the commander of the unit.
The evidence of the applicants may be briefly summarised as follows:
On 12th October 1993, the applicants, after having attended a Task Force meeting at head office, returned to the PAC office in Zone 11, Sebokeng. It was approximately midday. There were six of them in the office, all members of the Task Force unit. They saw two white men, who were dressed in khaki, alight from a vehicle in the close vicinity of the office. Shortly thereafter they were joined by another white man, the Deceased, who arrived in a Mercedes Benz vehicle which he parked close to the office.
They were shocked to see white men in the township and the 2nd Applicant thought that they were coming to attack their office. Shortly before, government Security Forces had attacked the house of a PAC member in Umtata and had killed a number of children. He, as commander of the unit, ordered that the white men should be shot and killed. The two white men who had arrived first left shortly after the arrival of the Deceased. The Deceased remained at the football field across the road where a drilling machine was being operated.
After some time the Deceased returned to his vehicle. A group of people gathered in the vicinity of the vehicle. The keys to the vehicle were locked inside and the right back quarter window was broken in order to gain access into the vehicle. The Deceased started the vehicle, but then alighted from it again, leaving the engine running. It was at this state, when the Deceased was standing next to the vehicle, that the 1st Applicant shot the Deceased with a pump action shotgun. The Deceased fell to the ground, mortally wounded. The 2nd Applicant jumped into the vehicle and drove off. The 1st Applicant fled the scene of foot.
The 2nd Applicant drove the vehicle to Zone 12 in Sebokeng. He stole a wallet and a wristwatch which were in the vehicle. The wallet contained no money. He stated that it was his intention to use the vehicle to drive to Transkei to attend the funeral of those slain in the aforementioned attack on the house in Umtata. It was also his intention to hand the vehicle and watch over to his commander who was in Transkei. He did not go to Transkei as he was arrested the following day.
The 1st Applicant was, during the election campaign preceding the general elections which took place on 27th April 1999, acting as a body guard for the President of Azanyu. He was in a motor vehicle which was stopped at a road block between Stratford and Ennerdale. The 1st Applicant was found to be in possession of an R1 rifle, a 9 mm pistol and a .38 special revolver together with ammunition. He was arrested and charged in respect thereof.
Jabulani Khumalo, a member of the National Executive Committee of the PAC, also testified. He confirmed that the applicants were members of the PAC and its Task Force and stated that 1st Applicant operated under the code name Solly and that 2nd Applicant operated under the code name David. He stated that the actions of the applicants on 12th october 1992 were in line with PAC policy explaining that in 1993 was the Year of the Great Storm and that tension rose considerably after the security force attack on the house in Umtata and that at that time any white person was regarded as a legitimate target.
Hermanus Steyn van Wyk, the son of the Deceased, also testified. He disputed the evidence that the keys to the Deceased's vehicle had been locked in the vehicle. he saw the vehicle after it had been recovered by the Police and stated that none of its windows were broken. He himself installed the immobiliser in the vehicle and one had to have special knowledge to activate it in order to start the vehicle. He expressed the view that the actions of the applicants on the day in question were not political but were purely criminal.
We accept the evidence that the applicants were members of the PAC and were members of a Task Force unit and that, as such, they were ardent supporters of the movement and its policies.
While it is clear from the evidence that the Deceased did not in any way constitute a threat to the applicants and that he was present in Sebokeng that day to extract soil samples from the football field where a stadium was to be built, the initial impression gained by the 2nd Applicant that the presence of the Deceased and the two other white men in the vicinity of the office constituted a threat is reasonably possibly true. This is especially so when one takes into account the tensions that prevailed amongst PAC supporters following the attack carried out by members of the Security Forces in Umtata.
The 2nd Applicant did explain in his testimony that the reason for attacking the Deceased was because the Deceased was a legitimate target in terms of the policy of his movement that prevailed during the Year of the Great Storm - the attack on the Deceased was not solely due to the misplaced belief that he may attack their office.
The 2nd Applicant testified that he did not take the Deceased's vehicle for personal gain. It was, he stated, his intention to use the vehicle to travel to Transkei to attend the funeral of the victims of the Security Force's attack and then to hand the vehicle, together with the wristwatch, over to his commander, one Makapula, who was in Transkei. This evidence, also, is in our view, reasonably possibly true.
The applicants were satisfactory witnesses and we, after careful consideration of all of the evidence, accept their version and are satisfied that they have made full disclosure.
We are, on their version, satisfied that the offences committed by themselves were acts committed with a political objective as envisaged by the provision of Section 20 of the Promotion of National Unity and Reconciliation Act, No.34 of 1995.
In the circumstances, their applications for amnesty succeed and: 1. Amos Tanki Tshabalala is GRANTED AMNESTY in respect of:
1.1 the murder of Barend Constant van Silk committed on 12th October 1993 at Sebokeng;
1.2 the robbery of a motor vehicle belonging to Barend Constant van Wyk committed on 12th October 1993 at Sebokeng;
1.3 the unlawful possession of a firearm and ammunition on or about 12 October 1993 at Sebokeng; and
1.4 the unlawful possession of three firearms and ammunition during 1994 at or near Ennerdale.
2. Mdubeki Johannes Ntantiso is GRANTED AMNESTY in respect of:
2.1 the murder of Barend Constant van Wyk on 12th October 1993;
2.2 the robbery of a vehicle belonging to Barend Constant van Wyk on 12th October 1993 at Sebokeng; and
2.3 the unlawful possession of a firearm and ammunition on or about 12th October 1993 at Sebokeng.
We are of the opinion that Hermanus Steyn van Wyk and other members of the Deceased's immediate family are victims and this matter is referred to the Committee on Reparation and Rehabilitation for its consideration.
DATED AT THIS DAY OF 2000.
______JUDGE S M MILLER
______JUDGE N J MOTATA
______ADV N SANDI AC/2000/223
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.
______
SIFISO CEDRIC SIBISI APPLICANT
(AM2941/96)
______
DECISION
______
The applicant applies for amnesty in respect of the attempted murder of Jabulani Hadebe on 25th December 1993 at Bhekezulu in the district of Estcourt, the murder of Phumzile Mbongwa on 23rd January 1994 at Bhekezulu, the attempted murders of Emmly Ncedeni Mbongwa, Sifiso Mbongwa, Bongiwe Mbongwa, Muelisi Mbongwa and Khumbulani Mbongwa at Bhekezulu.
At the hearing of this matter the applicant also made application for amnesty in respect of the killing of one Kamanathi Sithole during 1993. Section 18 of the Promotion of National Unity and Reconciliation Act, No.34 of 1995 (the Act), provides that any person who wishes to apply for amnesty in respect of any act of offence shall submit such an application to the Commission in the prescribed form before the cut-off date, which date was 30th September 1997. The applicant made no mention of the killing of Kamanathi Sithole in his original application and the original application does not in any way establish any basis or framework which permits us to consider the question of amnesty in regard to the death of Kamanathi Sithole.
The applicant testified that he was a member of the African National Congress (the ANC) and that he was the Commander of the Self Defence Unit (the SDU) in the Bhekezulu area. At the time in question, political violence was rife in the area and there were regular clashes between supporters of the ANC and supporters of the Inkatha Freedom Party (the IFP).
Jabulani Hadebe was, on 25th December 1993, chased by a group of men including the applicant. He was caught by them and a tyre containing petrol was placed around his neck. He was then forced to drink petrol. The petrol in the tyre was then set alight and he was left for dead. He miraculously survived the ordeal by rolling in a puddle of water and getting to a hospital.
The applicant stated that Mr Hadebe was attacked because he was a prominent member of the IFP. It is evident from the judgment given at the trial of the applicant that Mr Hadebe, who was the councillor of the local chief, had reported the applicant and others to the chief about an incident that occurred at a particular homestead which resulted in the applicant and the others having to appear before the chief. The political motivation for the attack upon Mr Hadebe is therefore questionable.
According to the applicant he was not present when the house of Mrs Emmly Ncedeni Mbongwa was attacked on the night of the 24th January 1994. The applicant's version is that he planned the attack and instructed other young men who were members of the SDU to carry it out. The stated objective of the attack was to shoot and kill the eldest son of Mrs Mbongwa. The applicant stated that six members of the SDU were sent by him to the house. He armed two of them with AK-47 rifles and others were given petrol bombs. He states that he did not go on the mission as he was tired and needed to sleep and also because he had to do patrol duty. None of the persons sent on the mission had received any military training.
The attack was carried out. Shots were fired and petrol bombs were thrown. Phumzile Mbongwa, a young daughter of Mrs Mbongwa, was shot and killed. The house was damaged by fire caused by the petrol bombs.
At the applicant's trial the evidence of Mrs Mbongwa was accepted as being truthful and reliable. She positively identified the applicant as one of the attackers.
The applicant was not a satisfactory witness. He was often hesitant in answering questions put to him and on occasion seemed to be creating a version in order to extricate himself from a difficult situation that he had placed himself in. As, for example, he said that Mrs Mbongwa's eldest son was 24 or 25 years old but when it was pointed out to him that he was only 15 years old he said that he only estimated the age to be 24 or 25 years as he, Mrs Mbongwa's son, had a beard.
There are also a number of contradictions between statements contained in the affidavit deposed to by the applicant approximately a week before the hearing of this matter and hose contained in his statement dated 30th November 1999 (Exhibit "A"). It is clear from both the judgement delivered at the applicant's trial and from Exhibit "A" that applicant played a leading role in the assault upon Mr Hadebe. The statement contained in his affidavit that "My intention was to give him (Mr Hadebe) opportunity to run away, but he was overpowered by the angry mob" is plainly an untruth.
His version that he did not participate in the attack upon Mrs Mbongwa's house is also unconvincing and improbable and is rejected as being untruthful.
We are not satisfied that the applicant has made a full disclosure of all the relevant facts as is required by the Act.
In the circumstances, the applicant for amnesty is REFUSED.
DATED AT THIS DAY OF 2000.
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JUDGE S M MILLER
______
ADV N SANDI
______
MR W MALAN AC/2000/224
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.
ANDRE CLOETE APPLICANT
(AM 5726/97)
DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). The matter relates to the murder of 13 persons and the attempted murder of 4 persons at the home of the Ntuli family at Kwa Makutha in the district of Umbumbulu, KwaZulu Natal on or about 12 January 1987. The incident resulted in the trial of a former Minister of Defence in the previous government and a number of high ranking members of the former South African Defence Force ("SADF") in the Durban and Coast Local Division of the then Supreme Court. Both the trial and the incident have been widely publicised. The incident arose from a SADF operation codenamed Operation Marion. Applicant appeared as a State witness at the trial and was not granted indemnity against prosecution by the trial court.
Applicant was the only witness to testify in support of the amnesty application which was opposed by the victims of the incident. A number of witnesses were called to testify in opposition to the application. Applicant's version will be set out followed by that of the other witnesses.
As part of his official duties, Applicant was involved in the military training of a number of operatives who were to constitute a para-military force to be deployed in KwaZulu Natal in support of the Inkatha Freedom Party and the KwaZulu Natal government. This was apparently the principal objective of Operation Marion. The training occurred in the Caprivi strip in Namibia. Part of the training included what Applicant referred to as "house cleaning". This term refers to an operation undertaken in an urban area where a house would be penetrated and its occupants systematically shot and killed. During such an operation, the attackers would move from room to room inside the house and kill any potential witnesses. The objective would be to eliminate the identified target as well as anyone who could incriminate the perpetrators.
At all material times, Applicant was stationed at Pretoria under the direct command of Captain Opperman. Approximately two days prior to the incident, Applicant and Captain Opperman travelled to Ulundi in KwaZulu Natal and called en route at the Fern Tree base near to Cathkin Peak in the Drakensberg. There they collected some weapons and travelled directly to Ulundi. Although Applicant suspected that an operation will be launched, he was not given any details by Captain Opperman. During the course of the morning preceding the attack, Applicant was informed by Captain Opperman that there would be an attack upon Victor Ntuli and he was provided with a sketch plan of the house. Applicant war ordered to prepare a group of former Operation Marion trainees to execute the attack. The preparations took place near to Ulundi and it entailed what is referred to as urban counter terrorism. Applicant basically prepared the group on how to penetrate the house and gave them some shooting exercises. The preparations took place during midday whereafter Applicant and Captain Opperman left Ulundi for Durban transporting the weapons which were to be used in the attack. At approximately 01h00 the next morning Applicant and Captain Opperman met the group of attackers close to the Durban airport and handed the weapons over to them. The group left and eventually returned in high spirits. They were excited and reported that the operation was a success. Applicant and Captain Opperman collected the weapons and handed them over to an officer at the SADF Natal Command. Applicant testified that he was disappointed when he discovered the next morning that instead of having killed the target, a number of women and children were killed in the house. He indicated that if he were in command of the operation, the attack would never have taken place. In his view those people who were charged with intelligence gathering for the purposes of the attack failed to properly execute their duties since it would have been quite clear that, instead of the target, there were only women and children inside the house if they had surveilled the house properly. Applicant apologised to the victims and next-of- kin of the deceased and asked for their forgiveness. Applicant, moreover, conceded that the attack was not justified because the wrong people were killed. In his view, the objective of the attack was not achieved because the target, Victor Ntuli, was not killed and the attack spurred on even further violence in the area. He also conceded that it was wholly disproportionate to deploy a group armed with 10 AK47 assault rifles in order to kill one person. He indicated that the attack should not have taken place and that to his mind it was the wrong way of going about trying to kill Victor Ntuli. He testified that although this was a standard "house cleaning operation", the operation would only have been triggered if Victor Ntuli was present in the house. He also conceded that he was bound by the negligence of the operatives or any other person involved in the execution of the operation.
The effect of the versions of the witnesses who testified on behalf of the victims basically was that the house in question belongs to the father of Victor Ntuli. Mr Ntuli snr was a priest at the time in the Twelve Apostles Church. A number of very young children were killed in the attack and one of the women killed was a parishioner who was given refuge from a domestic conflict. All of the occupants of the house were either members of or somehow linked to the church. According to Mrs Ntuli, her husband was a very strict man and none of their children, including Victor, was allowed to carry on any activities other than those related to the church. None of the victims nor anyone of the occupants of the house at the time of the attack, were directly linked to any political organisation or involved in any political activities. It was, in fact, a well-known fact that members of the church would meet at or be present at the house on a regular basis. The witnesses, moreover testified to their tragic loss and the devastating consequences of the attack on the lives of those affected by the incident.
Having carefully considered the matter, we are not satisfied that the attack was directed against any members or supporters of any publicly known political organisation or liberation movement as required by Section 20(2)(b) of the Act. The victims of the attack can by no stretch of the imagination be classified as political enemies of the State or of the perpetrators of the attack. Most, if not all, of the victims were either very young children or women not linked to politics at all. Even if, it would have been justified to launch a so-called "house cleaning operation" the absence of Victor Ntuli in the house renders the attack completely devoid of any justification as was readily conceded by the Applicant. Moreover, in our view, the attack was wholly disproportionate to any objective which the perpetrators were seeking to achieve. There is no relationship direct or otherwise between mercilessly mowing down a group of sleeping women and children and the objective of eliminating Victor Ntuli, who was regarded as a political enemy by the perpetrators. The sheer brutality and callousness of the act surpasses comprehension. In our view, even if the Applicant was not directly responsible for planning the attack, he played an indispensable role in the eventual tragedy that occurred at the Ntuli home. He, therefore, cannot escape the consequences of the actions of his co-perpetrators with whom he made common cause.
In the circumstances we are not satisfied that the attack constitutes an act associated with a political objective as envisaged in Section 20 of the Act and the application is accordingly REFUSED.
DATED AT CAPE TOWN THIS DAY OF 2000.
JUDGE R PILLAY
JUDGE D POTGIETER
ADV N SANDI AC/2000/225
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.
NKOPANE DIAHO-MONAHENG 1ST APPLICANT
(AM 3828/96)
VUYISILE BRIAN MADASI 2ND APPLICANT
(AM 6077/97)
LUNGISA MZIWONKE NTINTILI 3RD APPLICANT
(AM 6539/97)
DECISION
These are applications for amnesty in respect of the following offences:-
1. The Murder of John Jerling;
2. Malicious Damage to Property;
3. Unlawful Possession of the following Arms and Ammunition:
3.1 1 x R5 rifle with two (2) magazines;
3.2 1 x R4 rifle with two (2) magazines;
3.3 1 x Uzi SM 6 Pistol with magazines;
3.4 1 x F1 Handgrenade and
3.5 2 x .38 revolvers;
4. Robbery and Theft on the 12 March 1993 at Alice, of a Mazda Marathon motor vehicle registration number GCD 1616, belonging to Thandisile Vena;
5. Robbery and Theft during March 1993 at Mdantsane, of a Nissan Langley motor vehicle registration number CAU 3547 belonging to Albert Maboys Ndingane;
6. Robbery and Theft on the 20 March 1993 at Alice, of a Nissan Sentra motor vehicle belonging to Kenneth Mashalaba.
At the relevant time all the applicants were cadres of the Azanian People's Liberation Army ("APLA"), the military wing of the Pan Africanist Congress ("PAC") and claimed to be acting on its behalf. At the hearing, and before the commencement of the proceedings, the Committee was advised by Mr Mbandazayo who appeared for the applicants, that Thembinkosi Diesel Siyoni was withdrawing his application. The matter was accordingly proceeded with on the basis that Diaho-Monaheng, Madasi and Ntintili were the only applicants.
The applications arise out of an incident which occurred at Yellowwoods Hotel, Fort Beaufort, on 20 March 1993. On that day armed gunmen stormed the place with firearms and a hand grenade was thrown at the patrons. One of the patrons John Jerling (the deceased) was shot. He died instantly. Madasi acted as the Commander of the attackers. No person was charged and/or convicted of the offences flowing from the attack.
The evidence is as follows: At the beginning of 1993 Madasi, who had hailed from Cape Town, came to the Eastern Cape where he carried out a number of operations for APLA. He had received instructions from the late Sichumiso who was a member of the APLA High Command. His orders were to go to Fort Beaufort to carry out an attack at the Yellowwoods Hotel which had been identified as a target. It was believed in APLA circles that the place was frequented by members of the South African Defence Force ("SADF"), more particularly on Friday and Saturday evenings. One "Sky" (alias) was going to meet him at King Williamstown and provide him with accommodation. It later transpired that this is Zuko Camagu whose application is being dealt with separately from these applicants. He did not eventually get involved in the present attack. He was involved in the earlier attempted attack which was aborted. That was the end of his involvement in the matter.
Siyoni, was going to give Madasi information about the target since he came from the area. Their instruction was further that the place would have to be stormed on a Friday or Saturday evening. Before executing the operation Madasi was harboured at Mxhelo Village, Alice, and later he was joined by "Nceba" (alias) and "Mlungisi" (Nkopane Diaho- Monaheng). Nceba was to be the driver to transport the operatives to the place of the attack. Diaho-Monaheng was to act as deputy to Madasi. Siyoni was going to act as a link between Sichumiso and the applicants' unit. He was also going to be the person responsible to secure the necessary logistics. At that time he did not know Siyoni by any other name except Diesel.
Before they launched the attack Madasi and Nceba went to reconnoitre the Yellowwoods Hotel. This was important because Madasi was not acquainted with the area and Nceba was going to be driving the getaway vehicle on the day of the attack, so they had to fully familiarise themselves with the place. After the reconnaissance he had been conducted Ntintili and Sky came with the arms referred to in 3 above. Ntintili testified and confirmed that on 16 March 1993 he supplied the applicants with these arms in terms of orders from APLA. High Command. At that stage he only knew Madasi as "Shooter". On the same day he was arrested on the way to Transkei by members of the South African Police ("SAP"). He claims he was so severely tortured that he filed a civil claim against the SAP but the matter could not go any further when he became aware that the police were plotting to re-arrest him. He then fled to the Transkei.
When Madasi was about to decide on the exact day of the attack, they became aware that Ntintili had been arrested. This necessitated that they relocate to Mdantsane where they were accommodated by a comrade "Law" (alias), a relative of Nceba. Law was a student at the University of Fort Hare where they subsequently met in his room on a Friday evening to discuss and prepare for the attack. It was Madasi, Diaho-Monaheng, Nceba, Diesel and Sky. That evening Diahamonaheng, Sky and Nceba went to steal a Mazda car at Alice. They returned to fetch Madasi and Diesel. They were observed and followed by the police. They abandoned the operation for that evening, and they went back to Fort Hare where they left the arms and ammunition with Law. They returned to Mdantsane where they had been hiding.
The following Friday Madasi, Nceba and Diaho-Monaheng hijacked and robbed a red Langley vehicle from an unknown driver in Mdantsane. They drove to Alice where they fetched the arms. They proceeded to Fort Beaufort, but when they came to Yellow Wood Hotel the place was closed. They then returned to Mxhelo Village where they left the arms. The Langley vehicle was abandoned near Alice.
On a subsequent Saturday evening they again went to Alice where they hijacked and robbed a Nissan Sentra vehicle belonging to Kenneth Mashalaba. Virginia Khatshwa was also present in the vehicle at the time and the applicants pointed a firearm at them to ensure their co-operation. The applicants promised not to damage the vehicle. Mashalaba and Khatshwa were dropped off between Alice and Fort Beaufort. This is the vehicle they used to fetch the arms from Mxhelo Village whereafter they proceeded to the Yellowwoods Hotel. Madasi was armed with an R5 rifle; Diaho-Monaheng with an R4 rifle and Nceba with an Uzi pistol. On their arrival at the Hotel, Nceba parked the car and he and Madasi went to the front door. This was to prevent any person from escaping. Diaho-Monaheng proceeded towards the window. He stood there ready to fire. The applicants then opened fire on the patrons who were drinking and playing darts in the bar. The shooting lasted for about three (3) minutes whereafter they retreated. They left for Machuleni Village, Peddie, where they left the arms. The vehicle had a punctured tyre and was abandoned at King Williamstown. The following day they left for Transkei where Madasi gave a report to "Mandla Power" (alias) and Letlapa Mphahlele, members of the High Command of APLA.
Tragically, the place was not frequented by SADF members as the applicants had believed and worse of all the patrons were Jerling and some other youthful civilians who had nothing to do with the South African Security Forces. These were Abraham Johannes Wiese Herbst, Pieter Augustyn, Jan Johannes Nel, Henry Shaun Ferreira and Jonathan Spargs. Also present at the time were hotel staff: Collete Binala, Patricia Komani and Clyde Schwartz who was the assistant manager. All these persons were not injured and Jerling was the only fatal victim.
The applicants have testified that they had no intention of shooting the black staff. At the hearing the mother of the deceased, Anna Helena Jerling, testified that her son had no interest in politics and was still a student. He was 18 and had friends across the racial spectrum. When he was killed the family received condolences and messages of support from members of the ANC Youth League who even called off a protest demonstration that had been planned, in an expression of sympathy with the bereaved. She opposes the applications on the basis that no full disclosure has been made. Nel testified and said he was deeply traumatised by the incident and sometimes has difficulty sleeping. It also emerged from his evidence that there was a SADF Command Base about 15 to 20 kilometres away from the hotel. Although some of these soldiers occasionally visited the hotel to enjoy themselves, the place was not exclusively patronised by SADF members. All members of the public were welcome. He also said that Jerling was such an intimate friend of his that his death was a great emotional loss and suffering to him.
Subsequent to the incident Diaho-Monaheng was arrested in Lesotho. He made a confession and pointings-out pertaining to the attack. When the others were also arrested they co-operated with the police by admitting their involvement in the attack. They also made a number of pointings out.
Having considered the evidence as a whole, we are satisfied that the applicants were acting on instructions of the PAC and APLA. Their actions as aforesaid were in line with the policies and activities of the PAC and APLA and were aimed at making white people and the Government of the day aware of the urgent need for political change. We are further satisfied that the actions of the applicants occurred during the conflicts of the past as contemplated by the Act and that they have made full disclosure of all relevant facts. Accordingly they have complied with the requirements of the Act.
Amnesty is GRANTED to the applicants for the following offences:-
1. The murder of John Jerling;
2. The attempted murders of Abraham Johannes Wiese Herbst, Pieter Augustyn, Jan Johannes Nel, Henry Shaun Ferreira, Jonathan Spargs, Collete Binala, Patricia Komani and Clyde Schwartz;
3. Malicious damage to Property;
4. Unlawful Possession of the Arms and Ammunition referred to in paragraph 3. above;
5. The theft and robbery of the three (3) vehicles referred to in paragraph 4, 5 and 6 above.
The Committee is of the opinion that Anna Helen Jerling, Abraham Johannes Wiese Herbst, Pieter Augustyn, Jan Johannes Nel, Henry Shaun Ferreira, Jonathan Spargs, Collete Binala, Patricia Komani and Clyde Schwartz are victims and they are referred to the Reparations and Rehabilitation Committee for consideration as in terms of Section 22(1) of the Act. SIGNED AT CAPE TOWN ON THIS DAY OF 2000.
JUDGE A WILSON
ADV L GCABASHE
ADV N SANDI
MR I LAX AC/2000/226
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.
NORMAN BUTHELEZI APPLICANT
(AM 0352/96)
DECISION
The applicant applied for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 for the following offences:-
(i) Robbery;
(ii) assault on Mrs Gianini; and
(iii) possession of illegal firearms committed on or about 24 March 1991 at or near Verwoerdburg, Pretoria and sentenced to 14 years imprisonment.
Having considered all the evidence led before us, the Committee is satisfied that the applicant has satisfied the requirements of the Act and that the offences for which he seeks amnesty are acts associated with a political objective as defined in Section 20(1) of the Act. Our reasons in this regard will be given later.
Amnesty is hereby GRANTED for the following offences:
(i) Robbery;
(ii) assault on Mrs Gianini; and
(iii) possession of illegal firearms committed at or near Verwoerdburg, Pretoria on or about 24 March 1991 and sentenced to 14 years imprisonment.
The Committee is of the opinion that Mr and Mrs Giannini are victims in terms of Section 26 of the Act and recommends that they be referred to the committee on Reparation and Rehabilitation for consideration.
SIGNED ON THE DAY OF 2000.
JUDGE S KHAMPEPE
JUDGE N J MOTATA C DE JAGER (AJ) AC/2000/227
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.
EDWARD MOTHIBE 1ST APPLICANT
(AM 2550/96)
PATRICK MANDLA NDLELA 2ND APPLICANT
(AM 7043/97)
DECISION
Edward Mothibe (the 1st Applicant) applies for amnesty in respect of the attempted murder of and robbery of a firearm from Sgt. Phadi during 1993 at Daveyton, his participation in an attack on the Zenzele informal settlement during August 1993 and the murder of Arnold Kotelo, the attempted murders of Ernest Zweni and Lucky Tabu and the robbery of a vehicle belonging to Mr Kotelo at Daveyton on 1st August 1993.
Patrick Mandla Ndlela (2nd Applicant) applies for amnesty in respect of the murder of Mr Kotelo, the attempted murders of Messrs. Zweni and Tabu and the robbery of Mr Kotelo's motor vehicle.
The evidence of the 1st Applicant may be briefly summarised as follows:
He was a member of the African National Congress (the ANC) and Umkontho We Sizwe (MK). He left the country in 1986 and underwent military training in Angola. He returned to South Africa during 1992 and was deployed to assist the Self Defence Units (SDU's) in the Johannesburg and East Rand areas. His commander was Colonel Zakes.
During 1993, the exact date of which cannot be remembered, the 1st Applicant was in the company of a number of SDU members at Tlokwa in Daveyton. They saw a policeman, Sgt Phadi, entering a house. They decided to disarm him of his firearm as the SDU was in need of weapons. The 1st Applicant and three other persons, including one Elias Kobe followed the policeman into the house. The applicant grabbed hold of Sgt. Phadi and the said Kobe disarmed him of his firearm and shot him in both legs. They then fled the scene. Elias Kobe kept possession of the stolen firearm.
During 1993 there was a great deal of violent conflict between supporters of the ANC on the one hand and supporters of the Inkatha Freedom Party (the IFP) on the other. During either April or May 1993 supporters of the IFP attacked a train at Daveyton. It was decided by ANC supporters that a revenge attack should be carried out against the residents of the Zenzele informal settlement which was an IFP stronghold.
A huge group of approximately five hundred people launched the attack against Zenzele one night at about midnight. The 1st Applicant, who was armed with an AK47 rifle was a member of the attacking group. The attack lasted approximately four hours. The 1st Applicant shot indiscriminately a number of the shanty dwellings in the settlement. During the attack the residents of the settlement defended themselves by firing back at the attackers. The 1st Applicant does not know whether he personally killed or injured anyone during the attack. He heard later that one person was killed and several were injured during the attack. After the attack the ANC supporters retreated to the Chris Hani Camp. Shortly thereafter they learnt that the residents of Zenzele were holding a meeting. They suspected that they were planning a revenge attack. In order to pre-empt such attack they decided to launch another attack. A smaller group, consisting of approximately fifty people, of which the 1st Applicant was one, proceeded to Zenzele.
The residents of Zenzele were, however, waiting for them and fired at them as they approached. A police car arrived on the scene and the 1st Applicant's group fired at it. A further van owned by a policeman also arrived and was fired upon. The applicant's group then retreated to the Chris Hani Camp. Nobody was killed or injured in the second attack.
During or about March 1993 the 1st Applicant received information from certain comrades, including one Makana Maloi, that Arnold Kotelo, an attorney from Daveyton, was assisting the Pan Africanist Students Organisation (PASO) with legal services and also financially. At that time there was conflict between the Congress of South African Students (COSAS), which was aligned to the ANC, and PASO. According to the 1st Applicant PASO was gaining the upper hand in this conflict, particularly in Kwa Thema which is not far from Daveyton. The 1st Applicant then went to report this information to his commander, Colonel Zakes, at Shell House in Johannesburg. He couldn't locate Zakes and he made his report to Mr Jackie Selebe, a senior ANC official. Mr Selebe informed him that he would request the East Rand Peace Forum to investigate the matter.
Several months passed without the 1st Applicant hearing from Mr Selebe. He again went to Shell House but neither Mr Selebe or Colonel Zakes was there. He then spoke to Mr Peter Mokaba, also a senior ANC official, about the matter. Mr Mokaba expressed a reluctance to take any action.
The 1st Applicant then decided to use his own initiative. He convened a meeting of SDU members at Daveyton and it was here decided that Mr Kotelo should be killed. A unit was formed to carry out the deed. The unit consisted of the 1st Applicant, one Fanie (who was an MK cadré who had received military training abroad), the 2nd Applicant, Dingaan Molefe (now deceased) and Colin Mashigo (now deceased).
During the morning of 1st August 1993 the 1st Applicant and the said Fanie went to Mr Kotelo's house in Daveyton. There they spoke to a person who was washing a car. He told them that the Kotelo's had gone to Pretoria and would only be returning that night.
After leaving Mr Kotelo's house they saw two persons, namely Lucky Tabu and Ernest Zweni, who they later learnt were policemen who lived close by to Mr Kotelo's house.
They thereafter planned the killing of Mr Kotelo. It was decided that the 1st Applicant would not accompany the others on the mission. He would proceed to his flat in Hillbrow, Johannesburg where the others would report to him after the operation. The plan was that they would first ensure that the two policemen, Messrs Jabu and Zweni, would not cause an obstruction to their attack on Mr Kotelo. They would then abduct, Mr Kotelo and then shoot and kill him.
The 1st Applicant handed four firearms over to Fanie, who would command the operation, and then departed for Hillbrow.
Late that night Fanie, Colin Mashigo and two ladies arrived at the 1st Applicant's flat in Hillbrow. Fanie informed the 1st Applicant that he had taken the ladies on the mission to act as a "shield" in the event of them coming across a police patrol in such an event they would inform the police that they were accompanying the ladies to a night vigil. He reported to the 1st Applicant that they had neutralised the two policemen, Tabu and Zweni, by shooting them in a Shebeen which was approximately one hundred metres away from the house of Mr Kotelo. He also reported that they had kidnapped Mr Kotelo when he returned to his house from Pretoria, that they drove him away in his car, shot and killed him, left his body next to the road and that they had abandoned the motor vehicle in the Johannesburg city centre.
During December 1993 the 1st Applicant reported the killing of Mr Kotelo to Colonel Zakes. Colonel Zakes expressed shock at the report as he was unaware of the mission.
The 2nd Applicant testified to the following effect:
He was a member of the African National Congress Youth League (ANCYL) and also of COSAS. During 1993 there was much tension and political violence in Daveyton - PASO were fighting with COSAS and the ANC and IFP were also fighting each other. He was present at the meeting when Makana Maloi provided the information that Mr Kotelo was assisting members of PASO. Makana Maloi apparently got the information from a PASO member who was captured and tortured.
The 2nd Applicant confirmed the evidence of the 1st Applicant concerning the decision to kill Mr Kotelo and the formation of a unit to carry out the operation.
He stated that at approximately 20h00 on 1st August 1993 he, Fanie, Colin Mashigo, Dingaan Molefe and two ladies, namely, Maggie Dladla and Marapane, proceeded to a Shebeen which was in the close vicinity of Mr Kotelo's house. They found Lucky Tabu and Ernest Zweni in the Shebeen. Fanie instructed that the two policemen should be disarmed. They were taken out of the Shebeen and searched but were found to be unarmed. The two policemen then returned to the Shebeen. Fanie then stated that their firearms may be with the Shebeen owner and that they should be shot before they arm themselves. The 2nd Applicant, Mashigo and Molefe then went back into the Shebeen. Mashigo shot Lucky Tabu and Molefe shot Ernest Zweni at close range. Both Lucky Tabu and Ernest Zweni were seriously injured as a result of the shooting.
They then proceeded to Mr Kotelo's house where they hid themselves and awaited his arrival. After a while a motor vehicle arrived and stopped at the gate. Mr Kotelo and his wife, who was carrying their young child, alighted from the vehicle. As Mr Kotelo was opening the gate the members of the unit approached him from behind, grabbed him, forced him into the motor vehicle and drove away with him. After travelling a short distance Fanie ordered the vehicle to be stopped. He got out of the vehicle with Mr Kotelo and shot and killed him. They then drove to Johannesburg where they abandoned the vehicle.
Mrs Monica Kotelo, the widow of the deceased also testified at the hearing of this matter.
She stated that she and her husband and child went to Pretoria at approximately 15h00 on 1st August 1993. Their visit to Pretoria was unplanned and they left for Pretoria without any notice on an urgent basis. She accordingly denied the 1st Applicant's version that they were told during the morning that the Kotelo's were in Pretoria. She stated further that when they returned home that night her husband parked the motor vehicle in the road in front of their house. They all then went to the back door of the house. When there a number of people appeared, one of whom she identified as being the 1st Applicant. He was armed with a gun and said that they wanted the motor vehicle and demanded that the keys be handed over. Mr Kotelo handed over the keys. They then took his jacket, wristwatch and wallet and went to the motor vehicle, firing shots into the air. They returned after a short while and demanded that Mr Kotelo start the car for them as they could not get it to start. Mr Kotelo then left with them. That was the last time that she saw her husband alive. She stated that the attackers appeared to be drunk and she could smell alcohol on them.
She testified that her husband showed very little interest in politics and that he was not politically active. After the death of her husband she found an ANC membership card amongst his belongings. The card was produced at the hearing. It reflected that the card was issued to Mr Kotelo but contained no information as to when it was issued or as to when it would expire. Mrs Kotelo expressed doubt to the notion that her husband would have provided financial assistance to PASO. She was unaware of him having any connection or relationship with the Pan Africanist Congress or PASO.
We are of the view that Mrs Kotelo was an honest and truthful witness and we accept her testimony as to the events which took place on 1st August 1993.
It is evident from her version that the prime objective of the attackers was to rob the Kotelo's of their motor vehicle. This is clear from the fact that they demanded the keys for the vehicle and having got possession of the keys left their victims at the back of the house with the intention of driving away in the vehicle. They only returned and kidnapped Mr Kotelo because they could not get the vehicle to start. Their intention to rob is also evidenced by the fact that they forcibly removed and took Mr Kotelo's jacket, wristwatch and wallet.
The evidence of the applicants that they were informed during the morning of 1st August 1993 that the Kotelo's were in Pretoria is also false as it is clear from Mrs Kotelo's evidence that they only knew that they were going to go to Pretoria at approximately 15h00 in the afternoon. A further unsatisfactory feature of the 1st Applicant's evidence in this regard is the contradiction that exists between his testimony and a prior written statement made by himself. In his testimony he stated that he received information that the Kotelo's had gone to Pretoria from a person who was washing a car at their house. In a written statement dated 22nd April 1997 the 1st Applicant stated the following, "From thereafter we gathered. The day before I and other comrades went to Kotelo's house. We found his wife (Monica) and said to her we want to see Kotelo and she respond to us that you wouldn't see him because he would go to Pretoria tomorrow and he will be back late at night".
We also find it to be highly improbable that Mr Kotelo was actively assisting PASO in their fight against COSAS. He was not a politically active person and there is no acceptable evidence to suggest that he would have indulged in such activity. The applicants themselves admitted that they took no steps to confirm the veracity of the information given to them by Mokana Maloi. On weighing up the evidence and taking into account the fact that Mr Kotelo's purported support for PASO was raised for the first time in these applications it would seem that the contention that he was a PASO supporter is a fabrication designed to give their criminal deeds a political motive.
We are also of the view that the reasons given by the applicants for the shooting of Messrs. Tabu and Zweni are so improbable that they should be rejected as being false. The stated reason for attacking the said two persons was to pre- empt the scenario that they may have come to the assistance of Mr Kotelo in the event of them hearing a gunshot that may have been fired during the course of the kidnapping of Mr Kotelo. There is no doubt that the shooting of the two policemen in the Shebeen in the presence of other patrons created a far greater potential of jeopardising their mission than what they were trying to prevent, namely, the remote chance of those policemen coming to the assistance of Mr Kotelo.
We are accordingly not satisfied that the applicants have given a truthful account of events relating to the incidents which occurred on 1st August 1993. We are also of the view that the crimes committed by the applicants on that day were not politically motivated.
We are, after careful consideration, of the opinion that notwithstanding the fact that the 1st Applicant gave untruthful evidence in regard to the crimes committed on 1st August 1993, his evidence relating to the disarming of Sgt. Phadi and the attacks on the Zenzele informal settlement may be truthful and that he should be given the benefit of the doubt in this regard. His testimony in respect of those incidents stands uncontroverted and the account given is not improbable. We are also of the view that both the disarming of Sgt. Phadi and the attacks on Zenzele were politically motivated and that the applicant has made a full disclosure of all the relevant facts pertaining thereto.
In the result:
1.1 The amnesty application of Edward Mothibe relating to the kidnapping and murder of Arnold Kotelo, the robbery of the vehicle belonging to Arnold Kotelo, the attempted murder of Lucky Tabu and the attempted murder of Ernest Zweni is REFUSED.
1.2 The amnesty application of Edward Motibe relating to:
a. the attempted murder of and the robbery of a firearm from Sgt. Phadi during 1993 at Daveyton; and
b. the attacks on the Zenzele informal settlement during August 1993 is GRANTED.
2. The amnesty application of Patrick Mandla Ndlela is REFUSED. SIGNED AT CAPE TOWN THIS THE DAY OF 2000.
JUDGE S MILLER
JUDGE N J MOTATA
ADV N SANDI AC/2000/228
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.
TLHOMEDI EPHRAIM MFALAPITSA APPLICANT
(AM 3592/97)
DECISION
This applicant also applied for amnesty relating to an incident which occurred near Krugersdorp on or about 15 February 1982. This incident was heard by another panel of the amnesty Committee at a hearing in Johannesburg on 3 - 7 May 1999.
This decision only deals with incidents before 1982.
The applicant testified that he left the RSA in 1976 and joined the ANC in exile. He received training in Botswana, Tanzania and East Germany and was then deployed in Botswana where he was arrested for illegal possession of firearms and sentenced to 3 years imprisonment. He was released after 6 months and was thereafter based in Lusaka from 1979 onwards up to 1982. He left the ANC towards the end of 1982 and handed himself over to the South African Police whereafter he became an Askari.
He testified that while he was based in Lusaka, he served as a member of the Operational Unit (or department) under Joe Modise and Keith Mokoape together with one Charles. He didn't know the real name of Charles. It was put to him in cross examination that he never served with Joe Modise and Keith Mokoape in any Operational Unit. He, however, persisted that they were in the same unit and that they were his superiors who gave orders to him.
He further testified that during the late seventies or early eighties the ANC was infiltrated by members of the security forces. This led to security measures by the ANC which involved arrests and interrogation of many cadres suspected of being informers. Some of those found guilty were executed.
According to the applicant he received instructions from Mokoape to inform Simelane and Simon, who were at the time commanders at the F.C. Camp, to kill a cadre known as Shorty. He conveyed the order to them. He wasn't present at the killing but was aware that they took Shorty into the bush near F.C. Camp. On their return they reported that they had shot him. He personally knew Shorty and knew that he had been stationed in Zimbabwe since 1980.
The family of a person who was known as Shorty and who was found dead in Botswana during 1986 were represented at the hearing. It is, however, clear from the evidence that the latter Shorty was never stationed in Zimbabwe and he died in 1986. This person's real name was Tuku Thembisile.
At the conclusion of the hearing the Committee requested the Evidence Leader to have the matter further investigated. If the person referred to as Shorty was not killed at or near the F.C. Camp in 1981 but was indeed killed in 1986 in Botswana it would cast doubt as to the identity of the person killed in Zambia and may even reflect on the applicant's credibility.
After investigation a statement was received from Mr Surgeon Siguqu of Port Elizabeth. He stated that his brother, Mr. Tamsanqa Shooter Siguqu, left the country together with Mr Nceba Faku to obtain military training. Mr Faku confirmed that he last saw Mr Siguqu alive in exile but no date or place was given and he could not say if and how he was killed. Mr Siguqu suggested that his brother was the person referred to by the applicant as Shorty, a Xhosa speaking person from the Eastern Cape who was killed near the F.C. Camp in Zambia. The Committee is not satisfied that Shorty and Shooter is the same person and cannot make a finding in this regard.
The applicant testified that he acted in accordance with the orders he received and although he had subjective reservation, he associated himself with and accepted the fact that Shorty had to be killed.
The applicant further applies for amnesty in respect of assault on a number of people, during interrogations. He took an active part in some of the assaults by pinning the victim to the ground while he was being hit and in other cases he was a bystander who associated him with the assaults. He took part in the assaults on Disco, Ace and Wellington. He assisted in arresting Dadla, was present and associated himself with assaults on Dumisang, Oskosh and Moyse Diyan.
He further testified that he became disillusioned with the ANC and deserted them. It is common cause that he became an Askari.
Having considered the evidence given and taking into account the background and the situation as it existed during the period 1979 to 1981 and the absence of any evidence under oath contradicting the applicant's version the committee reached the following decision.
1. Amnesty is GRANTED to the applicant in respect of the murder of a person known as Shorty near the FC Camp at Lusaka in Zambia during 1981.
2. Amnesty is GRANTED to the applicant in respect of being an accessory to assaults on persons known as Disco, Ace, Wellington, Oskosh, Dadla, Dumisang and Moyse Diyan, committed in or near Lusaka during 1979 - 1982.
SIGNED AT CAPE TOWN ON THE OF 2000.
JUDGE A WILSON
ACTING JUDGE C DE JAGER
MR J B SIBANYONI AC/2000/229
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.
CHRISTOPHER GABOUTLWEWE MOSIANE APPLICANT
(AM3768/96)
DECISION
The Applicant applied for amnesty in respect of 6 incidents (see decision AC2000/194) where they are referred to and Applicant's background has been dealt with. In this decision the Committee will deal with the kidnapping of Bomber/Peter Thabuleka in Mamelodi; and the kidnapping of an unknown man in Mabopane.
Applicant was an MK soldier who had been kidnapped and became an askari. He was ordered to identify members of MK who came back to the RSA after they had received training abroad. His commander at Vlakplaas was Captain De Kock.
1. The kidnapping of Peter Thabuleka
Applicant and other askaris were ordered to patrol the streets of Mamelodi and to be on the look-out for an MK known as Bomber. According to Applicant, Simon Radebe, a member of the SAP under whose command they operated in Mamelodi, spotted Bomber and they kidnapped him. It transpired that the Applicant made a mistake about the name of the person kidnapped. The person kidnapped in Mamelodi was in fact Peter Thabuleka and not Bomber. The latter was a victim in another incident.
After kidnapping Peter Thabuleka during June 1988 he was tortured during interrogation to obtain information about the whereabouts of other MK members. The Applicant himself did not assault Thabuleka but witnessed the assault on him which included the so-called "tubing" - the near suffocation of a person by pulling a tube across his mouth and nose.
According to Applicant the torture was stopped when De Kock arrived on the scene. De Kock ordered them to leave and he then presumably proceeded with the interrogation. The Applicant did not see the victim again and does not know what happened to him afterwards.
2. The kidnapping of an unknown man in Mabopane
The Applicant also applied for amnesty in respect of the kidnapping of an unknown man in Mabopane. This was also an operation carried out under the command of Simon Radebe. The Applicant, Eric Sefadi and Radebe acted under instructions of Colonel Prinsloo. After the kidnapping the man was left in the company of four other policemen and they assaulted the victim.
The Applicant was at the time a member of the Security Forces acting on orders of his superiors. The offences were associated with the political objective of detaining MK members and interrogating them.
The Committee is satisfied that the incidents fall within the ambit of Act 34 of 1995 and that the Applicant has met the requirements laid down for amnesty.
Amnesty is GRANTED to the Applicant in respect of: 1. Offences and delicts directly linked to the kidnapping of Peter Thabuleka (to whom the Applicant had mistakenly referred to as Bomber) and the assaults on him during June 1986 in the district of Pretoria.
2. Offences and delicts directly linked to the kidnapping of an unknown person in Mabopane and the subsequent assault on him round about 1986.
SIGNED AT CAPE TOWN THIS THE 11TH DAY OF DECEMBER 2000
JUDGE S MILLER
A/J C DE JAGER
ADV S SIGODI
AC/2000/230
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.
KEVIN MABALENGWE MDLANKOMO APPLICANT
(AM6403/97)
DECISION
The Applicant applies for amnesty for the killing of Sipho Ngema who was shot by him at the Mozambique restaurant in Manzini, Swaziland on or about 6 January 1988.
The Applicant testified that he was a member of the African National Congress ("ANC") and an Umkhonto weSizwe ("MK") cadre who had undergone military training in Angola and Germany. He was deployed in Swaziland in 1987 as a member of a unit of 4 under the command of one Shezi, now deceased. The other members were one Thabiso, the second in command and Dumile, both now also deceased.
At the time ANC members were harassed by askaris and hit squads of the then South African Government. The deceased, Sipho Ngema, was one of such askaris who was previously a member of MK but who had defected.
The Applicant was told that Ngema was in Swaziland and ordered by Thabiso kill him. While Ngema was in the restaurant, the Applicant approached him, asked him to identify himself and upon confirmation of his identity shot him four time in the chest and head. Thereafter he left with Dumile and Thabiso who was driving the getaway car. He did not report the incident to anybody and assumed that Thabiso, who was in command of the operation, would do so. He, the Applicant, did not derive any personal benefit from the killing.
The wife and 18 year old son of the deceased attended the hearing but did not give evidence. The Committee is therefore left with only the evidence of the Applicant.
It was argued on behalf of the deceased's relatives that there was a duty on the Applicant to verify the order given to him by Thabiso. The Committee rejects this argument. There is nothing to indicate that the deceased was not a legitimate political target. The Applicant was a mere foot soldier who acted upon the orders of a superior. It was not for him to question or verify this order. He has complied with all the formal requirements for amnesty and acted with a political objective as required by Section 20(1)(a) of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 ("the Act") and, in the opinion of the Committee, made a full disclosure of all relevant facts.
Accordingly amnesty is GRANTED to the Applicant, Kevin Mabalengwe Mdlankomo, for the killing of Sipho Ngema in Manzini, Swaziland on or about 6 January 1988 and any other offence or delict directly flowing from or associated with this killing.
In the opinion of the Committee the wife of the deceased, Ms Zanele Ngema and his son, are victims in terms of Section 22 of the Act and they are referred to the Committee on Reparations and Rehabilitation for consideration.
DATED AT CAPE TOWN THIS 11TH DAY OF DECEMBER 2000
JUDGE D POTGIETER ADV F BOSMAN
ADV N SANDI
AC/2000/231
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.
MBUSO ENOCK SHABALALA APPLICANT
(AM5727/97)
DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No.34 of 1995 ("the Act"). The matter relates to the following incidents:
1. The attempted murder of Leonard Nxumalo on or about 23 October 1982 at or near Zondo Street, eThandakukhanya in the district of Piet Retief;
2. The murder of Pat Mafuna at or near Baragwanath Hospital, Soweto during or about the period 1982 - 1986.
The Applicant was charged only in respect of the attempted murder. He appeared in the Piet Retief Magistrate's Court where the matter was referred for trial in the Regional Court on 9 January 1997. The matter has not yet been finalised.
We have been informed by the Leader of Evidence, Mr Mapoma, that despite various attempts to locate the whereabouts of the victim and the next-of-kin in respect of the two incidents, the Investigative Unit of the Amnesty Committee had been unable to trace any of these parties. Even a newspaper advertisement proved to be ineffectual in this regard. In the circumstances the hearing proceeded with only an implicated party, Mr Jimmy Mbane, in attendance. No other evidence save that of Applicant, was tendered at the hearing. Applicant's version in respect of the two incidents will be set out briefly.
ATTEMPTED MURDER OF MR NXUMALO
Applicant joined the African National Congress ("ANC") in exile during 1978. he received military training in Angola and the former German Democratic Republic. During 1981 he became disenchanted with the ANC and returned to South Africa where he joined the South African Police. He became what is generally referred to as an askari. These are former members of the liberation movements who had joined the South African Security Forces and were deployed, amongst others, in the tracing and identification of liberation force operatives. Applicant initially worked with the Newcastle Police and was transferred during 1982 to the Security Police unit stationed at Vlakplaas. Here hew as eventually appointed as a Constable in the South African Police.
At some stage during 1982 Applicant was deployed in Piet Retief where his orders were to search for members of the liberation forces as well as illegal weapons. He was deployed together with a member of the South African Police also stationed at Vlakplaas, one Mutwa. They were dropped off in eThandakukhanya township by the vehicle that was transporting the personnel from Vlakplaas and had to meet up with the vehicle at a pre-arranged point. They moved on foot through the township and at some stage Mutwa entered a house that was targeted for a raid by members of the Vlakplaas unit later that evening. Applicant waited outside. After a while Mutwa came running out of the house and the two of them started running out of the township. They were confronted by a group of people who attacked them with stones. Applicant was in possession of the firearm of Mutwa who had been drinking and had handed over the firearm to Applicant. Applicant fired two warning shots into the air and another shot into the ground in an attempt to ward off the attack. This did not have the desired effect since the crowd grew in numbers and continued stoning them. At some stage Applicant fell to the ground whereafter he heard Mutwa firing shots. Applicant lost consciousness and eventually found himself in hospital.
Applicant did not know any of the attackers but was informed by Mutwa that they were people opposed to the police. After his discharge from hospital Applicant and Mutwa were reprimanded and assaulted by their Commander Captain Vermeulen who was upset by the incident.
In evaluating Applicant's version, we merely wish to point out that Applicant has failed to make a favourable impression upon us and that we find his version unsatisfactory. We do not regard it necessary to deal with the matter in any greater detail. In our view, the application can be decided on the material aspects of Applicant's own version. It is clear from his testimony that Applicant is unable to identify either the complainant or any of their attackers.
Furthermore, there is absolutely no indication that the complainant was indeed one of the attackers. There is, moreover, no persuasive evidence indicating that the complainant or any of the attackers could be regarded as political enemies of the Applicant at the time. There is no indication why Applicant and Mutwa were attacked and there is no credible or persuasive evidence linking the incident to politics. Applicant never indicated that he at any stage intended to attack or act against a political enemy. On his version, he simply fired warning shots in an attempt to ward off the attack upon himself and Mutwa. There is no indication that he fired any shots at the crowd or any individual.
Having carefully considered the matter, we are not satisfied that the incident constitutes an act associated with a political objective as envisaged in Section 20 of the Act. In the circumstances the application is REFUSED.
MURDER OF PAT MAFUNA
Applicant is unable to place a more specific date on this incident save to indicate that it occurred during the period 1982 until 1986. On the day in question, he and Jimmy Mbane were deployed at the taxi rank at the Baragwanath Hospital in Soweto. They were both former askaris who had been appointed as members of the South African Police. They were in search of liberation force operatives or illegal arms. At some stage prior to his joining Vlakplaas, Applicant noticed a former fellow ANC member, who had received military training together with him, in the company of the members of Vlakplaas. He had recognised he person as one, Pat Mafuna. At a later stage after having joined Vlakplaas, the superiors at Vlakplaas indicated that Mafuna had defected from Vlakplaas and was no longer an askari attached to the South African Security Police. The Vlakplaas superiors indicated that Mafuna had to be apprehended and if it was impossible to do so, he should even be killed.
At some stage, Applicant noticed Mafuna at the taxi rank and conveyed this information to his companion, Jimmy Mbane. Applicant thereafter called Mafuna who caught a fright and started running away. Applicant and Mbane followed Mafuna who was running towards a nearby shopping centre. Mbane managed to catch up with Mafuna and when Applicant joined up with them he found them wrestling on the ground. Applicant noticed that Mafuna was overpowering Mbane and was in fact in possession of Mbane's firearm. At some stage during the chase, Mafuna was in possession of a suspicious looking paper bag. Mafuna dropped the paper bag while he was running away. Upon reaching the point where Mafuna and Mbane were wrestling on the ground, Applicant immediately removed the firearm from Mafuna's hand and ordered Mbane to move away from Mafuna. Mafuna then started moving towards the paper bag whereupon Applicant shot him once in the shoulder and twice in the chest to stop him reaching the paper bag. After the security guards at the shopping centre started firing at them, Applicant and Mbane ran to a nearby filling station where they arranged for the police to be summoned from Protea Police Station. They were later removed from the scene by the police and subsequently learnt that Mafuna had died as a result of his injuries.
In assessing the application, we point out that the version of the Applicant concerning the shooting incident is peppered with contradictions, improbabilities and numerous unsatisfactory aspects. His attempts to link the shooting of Mafuna to the latter's alleged attempts to reach the suspicious looking paper bag are wholly unconvincing. We are indeed, satisfied that this is a story concocted by the Applicant to create some reason for having shot and killed Mafuna. His evidence in this regard is patently untruthful. We are satisfied that the Applicant simply executed Mafuna after the latter was apprehended. However, we bear in mind that the orders were given by Applicant's superiors at Vlakplaas encompassed the killing of Mafuna who clearly posed a considerable threat to the Security Police and could be regarded as their political enemy at the relevant time. The summary execution of Mafuna consequently fell within the ambit of the orders that were given by Applicant's superiors. Applicant would accordingly have been acting within the course and scope of his duties in attacking and killing Mafuna. Although Applicant added the fabricated version concerning Mafuna's alleged attempts to get to the suspicious looking paper bag, he did indicate in his testimony that their orders were, amongst others, to kill Mafuna and that this motivated his actions. In spite of the untruthful aspect in his testimony, we are prepared to hold that Applicant has indeed made a full disclosure of the relevant facts. Accordingly amnesty is hereby GRANTED to the Applicant in respect of the murder of Pat Mafuna during or about the period 1982 - 1986 at or near Baragwanath Hospital, Soweto.
DATED AT CAPE TOWN THIS 11TH DAY OF DECEMBER 2000
JUDGE D POTGIETER
ADV F BOSMAN
ADV N SANDI AC/2000/232
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.
______
ANDREW RUSSEL CAVILL TAYLOR 1st APPLICANT
(AM4077/96)
SALMON JOHANNES GERHARDUS DU PREEZ
(AM4130/96) 2nd APPLICANT
JACOBUS ADRIAAN VORSTER 3rd APPLICANT
(AM4390/96)
LAURENCE GERALD WASSERMAN 4th APPLICANT
(AM4508/96)
DECISION
The Applicants apply for amnesty for all delicts and offences arising from the unlawful arrest and/or abduction, the unlawful detention and the killing of Bhekayane Mkhwanazi (aka MK Tekere) at Elandskop in the district of Pietermaritzburg in or about 1988. All the Applicants are former security policemen in the erstwhile SAP. The first Applicant, Taylor, died after he had submitted his application for amnesty but prior to the inception of the hearing. The Committee never heard any evidence from him concerning the incident and is not in a position to make any finding in regard to his application. The remaining three Applicants base their applications for amnesty on the fact that they acted on the orders of Taylor their superior officer at the time. These remaining three Applicants, Du Preez, Vorster and Wasserman all testified before the Committee.
The next-of-kin of the deceased victim, Tekere, who attended the hearing, did not object to the granting of amnesty to the Applicants and the applications proceeded on an unopposed basis.
Although the evidence of the Applicants differed in some respects, the differences were not, in the opinion of the Committee material and, broadly speaking, their evidence can be summarised as follows.
They were all instructed to meet Taylor at a safe house of the Security Police in the Elandskop area near Pietermaritzburg. Taylor was in the company of Tekere who, so he told the Applicants, was either arrested or abducted by askaris while he was on his way to plant a bomb or bombs. Taylor had tried to persuade Tekere to become an askari but could not succeed in doing so and he decided that he should be killed. The Applicants, Du Preez and Wasserman, on the instructions of Taylor then dug a grave at a site indicated by Vorster and thereafter returned to the house where Tekere was held. Tekere was told that he was going to be moved to another place and then blindfolded and taken to the spot where the grave had been dug. Near the grave he was hit over the head by Wasserman. He fell to the ground unconscious, whereupon he was shot by Wasserman with a silenced Makarov pistol. They, Wasserman and Du Preez, took off his clothes, which they later burned, and buried him in the grave. Thereafter all the Applicants returned home.
The Applicants further testified that they had acted on the instructions of a senior officer whose decision they did not question and whose instructions they were obliged to execute. It was done in the course of the political struggle and to protect the interests of the government of that time and the Nationalist Party. It is common cause that the deceased was a member of the ANC and of its military wing Umkhonto weSizwe and thus regarded as a legitimate target by the Security Police.
The Applicants have complied with all the formal requirements for amnesty as set out in Section 18 of The Promotional of National Unity and Reconciliation Act, No.34 of 1995 (hereinafter referred to as "the Act") in that their applications were submitted on the prescribed form and within the prescribed time period.
In the light of all the evidence before the Committee, the Committee is also satisfied that the act/s committed by the Applicants were associated with a political objective as envisaged in Section 20 of the Act.
Although many questions remain unanswered as a result of the death of the Applicant, Taylor, the Committee is satisfied that the present Applicants have disclosed all the relevant facts and information that fell within their knowledge. The differences in their testimony were not of a material nature and should, in the opinion of the Committee be ascribed to the time period that has lapsed between the incident and the hearing of the applications for amnesty.
The Chairperson of the Committee at the time of the hearing was the late Mr Justice Mall. Although this decision was written after his death, the full Committee discussed the merits of the applications soon after the hearing and reached consensus that amnesty should be granted.
Accordingly amnesty is GRANTED to:
Salmon Johannes Gerhardus du Preez AM4077/96
Jacobus Adriaan Vorster AM4390/96
Laurence Gerald Wasserman AM4508/96 for all offences and delicts flowing from or directly associated with the unlawful arrest and/or abduction, the unlawful detention and the killing of Bekhanyane Mkhwanazi (aka MK Tekere) at Elandskop in the district of Pietermaritzburg in or about 1988.
The Committee is of the opinion that the relatives of the deceased, Ms Nombuse Sithole (mother) and Ms Jabu Mkhwanazi (sister) are victims and they are referred to the Committee on Reparation and Rehabilitation for consideration in terms of Section 22 of the Act.
SIGNED AT CAPE TOWN THIS 11TH DAY OF DECEMBER 2000
ADV FJ BOSMAN
MR I LAX AC/2000/233
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.
LUCKY SITHEMBISO SITHOLE APPLICANT
(AM6527/97)
DECISION
The Applicant makes application for amnesty in terms of Act 34 of 1995 as amended ("the Act") in respect of one count of Armed Robbery, one count of Consipiracy to commit Robbery and one count of Theft. He testified that he is a trained member of the military wing ("MK") of the African National Congress ("ANC"). He was trained in different foreign countries over a period of about five years. He was finally deployed in Umlazi, KwaZulu Natal.
He was then, he said, approached by one Mr Maphumulo and one Mr Fraser Shamase who were ANC Commanders in Umlazi and both now deceased. Because of the political situation regarding violence in the area, they ordered him to obtain firearms and ammunition. The manner, he testified, was left to his discretion. The Natal Building Society was targeted as a place which would provide sufficient funds to buy the necessary arms and ammunition. He raised this with his commanders who approved of the robbery. This he did, he testified, after negotiating a price of R36 000 or a kombi motor vehicle as payment for the arms.
He said that he was provided with the assistance in the form of two recruits namely Themba Mthethwa and Jabulani Zitha. They were also provided with a motor vehicle and weapons for the purpose of committing the said robbery. He said he chose them because they were accustomed to committing such offences and were experienced therein.
When they went to the bank they aborted the idea because it was heavily guarded.
In the vicinity of the bank, they were able to steal a kombi. Thereafter they proceeded to go and rob the New Geulderland Bottle Store of its money. The robbery went awry and some of the Applicant's colleagues surrendered and were arrested. The Applicant escaped having been separated from his colleagues.
He testified that he decided to make his way to Mozambique to purchase the firearms as arranged. He was arrested near Greytown.
When he was confronted with the proposition that Greytown would not be on the normal route to Mozambique, he said that he deliberately took an unusual route to confuse anyone that might be following him. His reason for stopping in the vicinity of Greytown was to allow the motor vehicle to cool down.
The explanations for these two facts are improbable to say the least. The focal issue was to go and purchase the firearms and, furthermore, despite the route one had to use, the danger of the stolen vehicle being detected was always present. Applicant needed to get to his destination as soon as possible. Therefore any reason to allow the motor vehicle to cool down is not as important.
Moreover, Applicant had difficulties in explaining why he did not go to Mozambique with the kombi vehicle he had stolen without robbing the bottle store. He testified that he needed money for petrol and that is why he embarked on the robbery. Furthermore he needed money to transport the firearms into South Africa. Yet he was on his way to Mozambique to trade the kombi for the firearms without any means of transport back with or without the firearms. He did not explain this. he did not make a good impression on the Committee and tended to change his evidence to suit his case. At times it seemed that he was willing to tender reasons for discrepancies without really considering the implications thereof. Yet many of these reasons did not make sense nor were they probable.
In the circumstances, the Committee is not satisfied that the Applicant has complied with the requirements of the Act and consequently his application for amnesty as applied for is REFUSED.
SIGNED AT CAPE TOWN THIS THE 11TH DAY OF DECEMBER 2000
R PILLAY J
D POTGIETER AJ
MR I LAX AC/2000/234
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.
PAULOS MTHWANA APPLICANT
(AM5944/97)
DECISION
The Applicant makes application for amnesty in terms of Act 34 of 1995 as amended ("the Act") in respect of the offence of Armed Robbery.
The Applicant testified that he was a member of the United Democratic Front since 1983. In 1990 he joined the African National Congress ("ANC") and was active in the Chesterville Branch of the ANC.
It is common cause that gang warfare had developed in the area and was rife during the period when this offence was committed.
He testified that he and one Stanley Gumede were ordered by one Saga Gumede to go and steal a motor vehicle in order to transport firearms for the purposes of defending the community against a gang. This occurred in a meeting called by Saga Gumede. He is unable to say if the meeting was called under the auspices of an organisation, or if so, which one. However, in his application he stated that the robbery of the motor vehicle was committed in order to sell it and use the proceeds to purchase firearms. He could not explain why he testified that he was ordered to commit the robbery in order to transport firearms. He made an affidavit in order to correct "mistakes" in his application. He explained that the mistakes were made because of time pressure when completing the application form. Yet in that very affidavit which he said was made to correct mistakes, he clearly stated that he did not act on an order when committing this offence but in terms of an agreement he had entered into with Sipho Nxumalo. He was unable to explain why he had said so if he indeed acted in terms of an order.
It is clear that the factual position in respect of his motive for committing this robbery is something, at best for the Applicant, that still has to be disclosed. His tendency to want to make "corrections" of factual issues which are matters which either occurred or did not occur detracts from the force of the application. These were not incidental crimes but were very material ones that strike at the root of the application.
His inability to explain these matters further fortifies the finding that he has not made a full disclosure of the facts and circumstances relevant to the commission of the offence.
The Committee thus is not satisfied that he has complied with the requirements of the Act and his application is consequently REFUSED.
SIGNED AT CAPE TOWN THIS THE 11TH DAY OF DECEMBER 2000
R PILLAY J
D POTGIETER AJ
MR I LAX AC/2000/235
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.
MFANAFUTHI KENNETH NGWENYA 1ST APPLICANT
(AM3096/96)
JACOB MOLEKOA MAPONYANE 2ND APPLICANT
(AM2843/96)
MUZI PATRICK KUBHEKA 3RD APPLICANT
(AM3263/96)
DECISION
The Applicants apply for amnesty in respect of armed robbery, murder and attempted murder, which offences were committed by them on 7th October 1991 at Illovo, Johannesburg.
It is evidence from the documentation before us that during the evening of 7th October 1991 Mr and Mrs Liquorish were entertaining two guests, namely Mr Dunkley and Miss Saint-Clair, at her house at Illovo, Johannesburg. They were sitting at the dinning table when five armed robbers, including the Applicants, entered the premises. The robbers then tormented the said four people and stole a number of items including a .44 revolver, a box of .38 ammunition, a camera, a video cassette recorder, watches, rings and jewellery, the total value of which was estimated to be R40 200. During the process of the robbery the alarm was activated and a security guard arrived at the house. Shots were fired and the five robbers fled from the house. Nobody was injured in the shooting that took place at the house. The police were summoned and Sergeant Jacobs and Constable Oosthuizen arrived in a police vehicle shortly thereafter. A shootout took place between some of the robbers and the said policemen. Constable Oosthuizen was fatally shot and Sergeant Jacobs was seriously injured. An R5 rifle was stolen from the police vehicle by the robbers before they fled from the scene. The Applicants were arrested during 1993. They were tried, convicted and sentenced to long terms of imprisonment.
The Applicants testified that they were all supporters of the African National Congress (the ANC), that they all lived in Alexandra Township and that they were members of a Self Defence Unit (SDU). They stated that at that stage their SDU was not assisted by a member of MK and also that it had no structure or hierarchy. The SDU, they state, was formed to protect their community from attacks from supporters of the Inkatha Freedom Party (the IFP). Their SDU had a shortage of firearms and they, the Applicants, decided to take it upon themselves to acquire firearms for the SDU. Jacob Moleka Maponyane (the 2nd Applicant) informed them that he knew of a house in Illovo where they could get firearms. The Applicants together with one Johnny and one Elvis then, on 7th October 1991, went to the house in Illovo, which house was the house of Mr and Mrs Liquorish. Mfanafuthi Kenneth Ngwenya (the 1st Applicant) and Muzi Patrick Kubheka (the 3rd Applicant) were armed with firearms and the other three were armed with knives.
The Applicants testified as to the events which took place in the house. They all denied that they witnessed any items other than firearms and ammunition being stolen. They stated that it was their sole intention to only take firearms and ammunition and they only learnt the next day that Johnny had taken the jewellery. All three Applicants testified that they were present at the shootout with the police after they had left the house. Both the 2nd and 3rd Applicants admit that they fired shots at the police and the 1st Applicant stated that he removed the R5 rifle from the vehicle.
All of the Applicants emphatically denied in written statements which they submitted to the Commission prior to the hearing of this matter that they were involved in the shootout with the police. It was only at the hearing of this matter that they admitted being involved. They explained this discrepancy between their statements and testimony by saying that they thought they must tell the Commission what was said at their trial as they thought the Commission was linked to the courts. These similar discrepancies between their prior written statements and their evidence at the hearing of this matter reveal that the Applicants collaborated with each other in submitting untruths to the Commission. Their evidence is therefore approached with caution.
The testimony of the Applicants that they were unaware that watches, jewellery, a camera and other items besides firearms and ammunition were stolen is unconvincing and rejected as being false. They had scant knowledge of the then structures of the ANC in Alexandra and their evidence that they endeavoured to raise funds from the community in order to purchase firearms for the SDU is also unconvincing. The evidence of the 2nd Applicant that he had approximately six months before the robbery burgled the Liquorish's house and stole a firearm, which firearm he sold undermines his claim that the objective of the robbery on 7th October 1991 was to acquire firearms for the SDU.
The evidence that their SDU was without structure, the fact that robbing civilians in their home was contrary to ANC policy, the lack of corroboration that the Applicants were members of an SDU and the nature of the items stolen by the Applicants lead us to believe that the Applicants were acting for their own personal gain rather than as members of an SDU when they committed the robbery.
We, after considering the evidence and documentation before us, are not satisfied that the Applicants have made a full and truthful disclosure of all relevant facts pertaining to the offences for which they apply for amnesty. We are also not satisfied that the offences were acts committed with a political objective as envisaged by the provisions of Section 20 of the Promotion of National Unity and Reconciliation Act, No 34 of 1995.
In the result, the applications for amnesty of all the Applicants are REFUSED.
SIGNED AT CAPE TOWN THIS THE 11TH DAY OF DECEMBER 2000
JUDGE S MILLER
JUDGE NJ MOTATA
ADV N SANDI AC/2000/236
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.
GEORGE NKOSINATHI THWALA 1st APPLICANT
(AM5294/97)
MARTIN MMAPATLA RAMPHOMANE 2nd APPLICANT
(AM5297/97)
DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act.
The Applicants are seeking amnesty for the murder of Monde Mpatheni. The incident occurred in Botswana (Lobatse) in or about July 1981. At the relevant time both Applicants were trained cadres of Umkhonto weSizwe ("MK"), the military wing of the African National Congress ("the ANC"). At the hearing the Applicants were the only witnesses to testify and no person from the side of the deceased testified. The Committee was advised by the Evidence Leader that all diligent efforts to locate the whereabouts of the next-of-kin of the deceased were in vain. The matter, therefore, proceeded unopposed.
It is convenient to summarise the evidence of both Applicants which had no contradictions and is as follows:
Whilst they were in Botswana they received a warning from ANC Headquarters in Lusaka that there was information from ANC sources within South Africa that State Security Forces were preparing to launch an attack on their bases in Gaborone. They were being warned to be on the look out for spies who could possibly infiltrate their ranks. At the time there were continuous raids into the neighbouring countries by the South African Security Forces and many ANC members were killed. The deceased was a former cadre of the ANC who was deployed inside the country. He was arrested and turned by the South African Police to work for them, namely, to operate as an askari. The Applicants had also received information that the deceased was frequently seen in soweto. He was usually in the company of Joe Mamasela, also an ANC cadre who was deployed inside the country by the ANC. They had both been released and were never charged with any crime. The Applicants state that they were expecting the two (2) to face criminal charges, unless they had agreed to work with the police against the ANC and its cadres. Their repeated order to the two that they return to Gaborone and give a report on what had happened whilst they were in police detention and, in particular, how it came about that they were released without being charged, was not adhered to. The deceased and Mamasela never made any contact with them.
Some weeks later the deceased and Mamasela were seen by ANC cadres at Lobatse, Selibi-Pikwe. This was in Botswana and nobody knew how they came there. Because of the suspicions which prevailed at the time that they were working for the police they were abducted by the ANC. The Applicants' comrades found in their possession pistols which were fitted with silencers. They also had an arsenal of ammunition with them and it was clear that they had come to launch an attack. The suspects were taken to Gaborone Operational Headquarters of the ANC, where the Applicants were based at the time. On arrival there they were separated from each other and interrogated. During the course of the interrogation the deceased confessed that they had come to Botswana to kill as many of the MK cadres as possible. These were their instructions from the Vlakplaas Security Police. According to the plan they were to return to South Africa the next morning. They were first going to kill cadres at Selibi-Pikwe and Gaborone; Lobatse was to be their last point where they would spend the night in a house and depart the next day. The Applicants state that they decided to take the deceased by car to Lobatse so he could point out the house. It was the two (2) Applicants and another ANC cadre Martin Sere, who has since died. When the deceased came to Lobatse, he suddenly could not remember the location of the house. He requested to be allowed to alight from the vehicle so he could go and relieve himself in the bushes. Not knowing that the deceased was up to mischief, the Applicant and his company acceded to the request and stopped the vehicle. Then there was a commotion in the car as it transpired that the deceased had been hiding a pistol in his body. It was clear that the initial search had not been thorough. In the course of the ensuing struggle Ramphomane fired two (2) shots at the deceased. He died instantly. The Applicants say the deceased was on the point of shooting at that stage and would have killed them if they did not act as they did.
The next problem was what were they going to do with the body. They dowsed it with petrol and set the corpse alight. They did not want it to be known that they had committed a crime. They went back to the place where Mamasela was being held by other comrades. They decided that they were not going to ask him to take them to Lobatse and point out the house where they were going to sleep before proceeding to South Africa, but they took him to the "Ordinance People" for further interrogation and disciplining. Mamasela subsequently escaped and went to report the incident at the Gaborone Police Station.
The Applicants were subsequently arrested in Gaborone and charged with murder. They were found not guilty and discharged due to insufficiency of evidence.
The Applicants state that the killing of the deceased was necessary to protect ANC cadres and in particular the 2nd Applicant, Ramphomane, who occupied the back seat with the deceased whilst Thwala was driving. The deceased had taken the Applicants by complete surprise and pointed Ramphomane with a pistol.
After carefully considering the evidence in the matter and the context within which the incident occurred, we are satisfied that it happened as the result of the conflict of the past. It further appears that the Applicants have given a full disclosure of the relevant facts. Amnesty is therefore GRANTED for the murder of Monde Mpatheni at Gaborone in or about July 1981.
We are of the view that the next-of-kin of the deceased are victims in terms of the Act and accordingly recommend to the Committee on Reparations and Rehabilitation to make such finding in terms of the Act.
SIGNED AT CAPE TOWN ON THIS 11TH DAY OF DECEMBER 2000
ACTING JUDGE D POTGIETER SC
JUDGE J MOTATA
ADV N SANDI AC/2001/237
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.
ZIBA GERALD MPANZA APPLICANT
(AM6167/97)
SIFISO GOODMAN MALEVU
MZWAKHE CLEOPHAS SHANDU
DECISION
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 AC/2000/238
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.
ENOCH MUISENG MASHOALA APPLICANT
(AM 7078/97)
DECISION
The applicant is a former member of Umkhonto we Sizwe ("MK"), the military wing of the African National Congress ("the ANC"). He is presently a high ranking officer of the South African National Defence Force. He is seeking amnesty for a wide range of incidents, namely, conspiring to attack members of the erstwhile South African Police ("SAP"), planting of limpet mines, bombings and unlawful possession and use of firearms and explosives. At the relevant time the applicant was an MK Chief of Staff in Botswana wherefrom he commanded Oderille "Mainstay" Maponya and Rodney Abraham Moeketsi Toka to infiltrate the borders of the Republic of South Africa and carry out operations on behalf of the ANC and MK. At the hearing the applicant was the only witness to testify and his application was unopposed.
The applicant testified that as Chief of Staff his duty was to give orders to the operatives to infiltrate the Republic of South Africa and recruit sympathetic members of the community to join MK. These people were then trained by Mapnya and Toka and participated in military activities in pursuance of the aims and objectives of the ANC's armed struggle. The applicant never made any contact with the recruits. Neither did he know who they were but he would receive reports that operations had been carried out. He did not always receive such reports because initially reports were sent to his superior "Naledi Molefe". When the latter was subsequently killed in an ambush in Botswana by members of the South African Security Forces the applicant took over from him. The applicant and the late Molefe would convey the reports to senior MK cadres such as the late Mr Chris Hani who came to Botswana to receive same and give further instructions. The applicant testified further that sometimes it would be difficult for Maponya and Toka to communicate with them or travel to Botswana to give such reports. In other cases reports would be received much later after an operation had been carried out. The command structure in Botswana comprised the applicant, Pat Thwala and Che Ogara and so reports would not always come to him but would go instead to one of the said members. It sometimes happened that when reports were conveyed to Botswana the applicant would not be there.
When Maponya was killed in an accidental explosion of a bomb in Pretoria, Toka took over as the new head of the internal units. It is convenient to mention that Toka and other cadres of MK previously applied for a host of actions which were carried out on the orders of the applicant's command structure, which applications were granted by the Committee (See AM6034/97; AM7193/97; AM7452/97; AM5697/97; AM7745/97; AM7653/97; AM7737/97 and AM7273/97).
The applicant recalls receiving reports in respect of some of the incidents for which Toka et al were granted amnesty. He states that as commanders they were not involved in the selection of the targets and the actual planning of the attacks. Toka, Maponya (initially) and Webster, as well as the recruits had a discretion in the identification and planning of attacks, as long as the nature of the selected targets was in line with the ANC policy of not deliberately attacking or endangering the lives of innocent civilians. The said policy, however, envisaged the ever-present risk and danger of civilians getting caught up in the cross-fire. Most importantly, he asserts that all the targets that were selected met the criteria of the ANC. However, he regrets the fact that civilians were injured or killed in some of the operations inter alia the Juicy Lucy attack and the incident where a child, Patience Kulele, was killed at the house of Lucky Manette Kulele. This attack was carried out by the unit on or about the 10 May 1988. The applicant states that according to ANC policy the Juicy Lucy restaurant constituted a legitimate target since it was frequented by members of the SADF. Kulele's house was attacked because he was a member of the policy force and at the time the police were seen as enemies of the ANC since they defended and enforced the apartheid system and its unjust laws.
In addition to the incidents which were carried out by Toka and his men, he is seeking amnesty for another incident in which his underlings Stoffel and Tabagu forced their way through a road block set up by the Bophuthatswana Defence Force. There were also members of the police force that were present on the scene and the two operatives randomly opened fire on them. The applicant does not know when exactly the incident took place but it was during the same period Toka and his unit were busy carrying out operations, namely, between 1988 and 1990. He also does not know if any members were killed or injured in the incident.
After carefully considering the matter we are satisfied that the applicant's application complies with the requirements of the Act. It is clear that the actions that were carried out are "acts associated with a political objective" in terms of Act.
It further appears that he has given a full disclosure of the relevant facts, where he could do so.
Amnesty is accordingly hereby GRANTED to Applicant in respect of all offences and delicts which resulted from the operations conducted in the Republic of South Africa by the MK Units acting under Applicant's command during or about the period commencing in the 1980s until approximately 1990, including all incidents referred to in the amnesty applications referred to above which, inter alia, encompassed:
1. Conspiring to murder Barney Mopa; Andrew Mphahlele and Nelson Phenyase.
2. The attempted murder of Ticky Maleka and Ananias Nkoane.
3. The conspiracy to murder Patience Kulele and the attempted murder of Rose-Mary Muzwayine.
4. Conspiring to cause malicious damage to property to house No. 855, Mamelodi Gardens.
5. Conspiring to murder Matilda Eleodora Venter; Elke Martha Hanse; Anna Maria Prinsloo; Susanna Maria Magdelena Kruger and Alida Maria Claasen.
6. Conspiring to cause malicious damage to property which crime was committed in the course of the execution of the "Juicy Lucy" bombing, namely, an SADF Vehicle; Golf Pro Business Enterprise Premises; State Library; Magistrate's Offices Building and Old Mutual Building.
7. Conspiring to place a bomb at Proes Street, Pretoria, and for the damage caused to a vehicle belonging to B.R. Walster on the 26 May 1988.
8. Conspiring to murder Simon Myeke and for malicious damage to property.
9. Conspiring to murder Bangiwe Charles Ndala and Ronald Mulatedzi as well as for malicious damage to property.
10. Conspiring to commit malicious injury to property of the former Department of South African Railways and Harbours in or about 1988.
11. Conspiring to murder Constable Mpahlele and for malicious injury to property.
12. Conspiring to attack and murder members of the Bophuthatswana Defence and Police Forces in the 1980's.
13. Conspiring to murder members of the South African Security Forces in general and to cause injury to their person and property.
14. Contravening the provisions of the Explosives Act. 15. Defeating the ends of Justice.
16. Crossing international borders without a valid passport.
17. Contravening the provisions of the Arms and Ammunition Act.
It is recommended that the victims of the aforesaid incidents be declared victims in terms of the Act.
SIGNED AT THIS THE DAY OF 2000.
D POTGIETER (AJ)
ADV N SANDI
ADV F BOSMAN AC/2000/239
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.
PATRICK MNCEDISI DLONGWANE (HLONGWANE) APPLICANT
(AM 8028/97)
DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995.
The applicant is seeking amnesty in respect of numerous counts of arson and perjury which crimes were committed in Port Elizabeth during the 1980s. He claims that at the relevant time he was a Security Branch police ("SBs") informer and carried out orders from his handlers. At the hearing the applicant was the only witness to testify and one of the victims, Mrs Ivy Gcina, testified on behalf of victims of the applicant's acts of arson. We do not deem it necessary to deal with her evidence at this stage, save to say that all the victims do not oppose the application. None of the implicated persons testified and Mr F. Van der Merwe represented their interests. His cross-examination boiled down to a denial of the applicant's claim that he was their informer and that he carried out the aforesaid acts on their instructions. This is another aspect with which we intend to deal with later in our decision.
The evidence of the applicant is briefly as follows:-
In the late 1970s he joined the then Port Elizabeth Black People's Congress ("PEBCO"); the Congress of South African Students ("COSAS") and other anti-Apartheid organisations which operated in the area. He was very much involved in their activities and campaigns which entailed inter alia bus boycotts; rent boycotts; class boycotts and an assortment of activities which were calculated to oppose the National Party Regime and its policies.
The First matter of Perjury
On a certain day in the early 1980s the applicant was arrested with a number of other youths and members of the said organisations who included Zola Mtantsi the then Chairperson of COSAS in Port Elizabeth. They were charged with public violence. At the criminal trial he testified against them and they were convicted and sentenced to terms of imprisonment. The applicant states that he testified against his comrades because he was ordered by members of the SBs to do so. They recruited him to work for them. At the time he knew that his evidence was false but was only carrying out orders from his superiors, namely, Captain Roelofse; Gideon Niewoudt and other Security Police who were his handlers and paid him for his services and loyalty. He did not do this for money but it was because he had been indoctrinated by the police and convinced that what the said organisations were doing would compromise stability and peace in the country. He fully embraced the idea of the "Total Strategy" against the "Total Onslaught".
The Second matter
The applicant states that during the 1980s there was a very serious upsurge of political activity and mass mobilisation in Port Elizabeth. The United Democratic Front ("the UDF") was on the forefront of many actions against the Nationalist Party Regime and perceived collaborators. In this context the police had to play a very pivotal role to normalise the situation and many activists were harassed. The applicant states inter alia that he was instructed to guard the homes of Community Councillors who were quite unpopular in the area. In addition, he had to take part in the petrol bombing of homes of UDF leaders and their supporters. These were orders from Roelofse and Niewoudt. Using a police Kombi they went around the black townships at night and petrol-bombed houses of prominent UDF activists. The following persons' houses were attacked: Sipho Hashe; Lulu Johnson; Ivy Gcina; Vuyani Vena and Mono Badela. In all these operations no person was injured. He acted with Butler Tungatha, Stanford Nene and other police officers whose names he is unable to recall. The objective was to demoralise the masses who fervently supported the UDF and its campaigns. This was just one part of the objective and the other aim was to fuel the conflict which existed between supporters of the UDF and those of the Azanian People's Organisation ("AZAPO"). At that time there was a violent conflict between the two (2) organisations.
After carefully considering the evidence of the applicant we are not satisfied that he had made a full disclosure. At the hearing he was an extremely unsatisfactory witness. He was hesitant to answer clear questions on very vital aspects of the matters in respect of which he is seeking amnesty. He would keep on saying that he had "no comment" to make when a compelling necessity existed for him to do so. When he did attempt to offer an explanation he would give lame excuses and really spoke pure nonsense. Whilst we do not wish to traverse all of his evidence on this aspect, as the record very loudly speaks for itself, we think it is necessary to cite one example. He testified that in 1995 having been impressed by the call that was made by former President Nelson Mandela that all those who committed gross violations of human rights during the Apartheid era should come forward and tell the truth about their past activities, he immediately applied for amnesty. When it was pointed out to him that the TRC was not in place in 1995 he was adamant that it was. Ironically, when he subsequently testified before the Human Rights Violations Committee of the TRC he lied about many things inter alia that some of the ANC leaders assaulted him and other suspected spies whilst they were being held as "detainees" by the organisation in the notorious Quatro Camps in Angola. At the amnesty hearing when he was asked why he had told such lies he said in 1996 as a leader of the Returned Exiles Committee, a body consisting of disgruntled former ANC members, he was still fighting a war against the ANC. The examples are far too numerous to mention and we again express our desire to let the record speak for itself. On the whole the applicant's evidence is totally irreconcilable with his professed desire to finally come out and tell the truth. There is simply no evidence that he is no longer the inveterate liar who has lied so many times before when he testified before other tribunals, including the TRC. On the whole his evidence is so riddled with inconsistencies, discrepancies and contradictions as to be totally unreliable.
In the result the application is REFUSED for all the offences.
It is recommended that the applicant be prosecuted and charged with perjury forthwith and in this regard the TRC Legal Department is hereby requested to facilitate and expedite the wheels of justice in respect of the applicant's lies to the Human Rights Violations Committee.
SIGNED AT CAPE TOWN ON THE DAY OF 2000.
JUDGE R PILLAY
A/J D POTGIETER SC
ADV N SANDI AC/2000/240
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.
BASIL KENYON DUMISANI MAFU APPLICANT
(AM 5293/97)
DECISION
The Applicant makes application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995, as amended ("the Act"). The Applicant joined the African National Congress ("ANC") in 1978 and its military wing ("MK") in 1980-81. He was trained as a soldier in foreign countries and eventually became a commander of the erstwhile Transkei in 1986-87. Even thereafter he still held such responsibility while deployed outside South Africa.
The programme of the ANC was to confront apartheid. During such programmes, it embarked on armed offensives in order to deal with apartheid and its machinery. The details of the nature of MK activities against apartheid and its institutions have been well documented in various matters dealt with by the Commission. Suffice it to say that many of the activities involved sabotage. In pursuance of his duties as an MK commander, the applicant was involved in the commission of a number of criminal offences as a result of which many people were either killed or injured.
During 1986 the Applicant planned an attack on the Botha Sigcau building in Umtata. This was planned with Mazizi Maghekeza and Sicelo Mantyi both of whom were members of the unit commanded by the Applicant. Mantyi was employed at the building and this made planting a limpet mine in the building easier. This building was targeted because it is a state owned building from which some state departments operated. Immediately before this incident, King Sabata, a member of the ANC passed on. The government of the then Republic of Transkei were making unpleasant remarks in respect of Sabata and the ANC. As a result, it was decided to plant the limpet mine in the building. In terms of the plan, the mine was set to explode before eight in the morning because that was when most of the employees came to work. The rationale was that it would explode before this and therefore injuries and possible fatalities could be minimized. However, the building was damaged and one person, Mr Colbert Thamsanga Ndzobole was injured as a result whereof he died. The Applicant realised that people might be injured or killed and that damage would be caused.
The Committee is satisfied that this incident was committed within the political framework of the time and that the Applicant has complied with the requirements of the Act.
On the 29th July 1986, the Applicant participated in planning an attack on the police station situated at Madeira Street, Umtata.
This police station was regarded as the centre of apartheid repression in the Transkei area. It was the building in which arrested ANC members were tortured. In pursuance of the anti-apartheid programme, the attack on the police station was seen and designed to be an attack on a symbol of apartheid oppression.
The Applicant, as commander, participated in the planning of the attack and approved it. He provided firearms for the intended attack. He knew that people could be injured or killed and that damage to property would be caused.
In terms of the plan, Mbulelo Ngona, Solly Talakumeni and Simphiwe Mazwai, proceeded to the police station and attacked it by shooting and throwing handgrenades at it.
As a result, eight people were killed, five were injured and extensive damage was caused to the building of the police station itself.
The Committee is satisfied that the Applicant has made a full disclosure as to the facts related to this incident, that it was committed with a political motive and that all the formalities and requirements of the Act have been complied with.
During January 1987, the Applicant and two members of his unit, Mzizi Maqhekeza and Mbulelo Ngona, were hiding at the home of shop owner, Mr Max Jafta. Applicant and Maqhekeza had left Ngona there when they proceeded to another place. On their way back, they were informed that the home of Mr Jafta had been raided by the police.
The two of them then took steps to go to this house in order to rescue Ngona whom they thought had been arrested. They believed it was part of their political obligation to do so. However, on their way there on 22nd January 1987, they encountered the police near Dweza and a shoot-out ensued between them and the police. He accepts that policeman Ncedile Ephraim Kupe, was injured during the shoot-out.
The Committee is satisfied that this incident occurred within the political framework of the time and that the Applicant has complied with the requirements and formalities referred to in the Act.
During April 1986, the Applicant, in his capacity as Transkei MK commander, participated in the planning of an act of sabotage. The plan was that his colleagues would plant a bomb at the Mzamba Wild Coast Sun Hotel. The Hotel was regarded as a symbol of Apartheid and homeland corruption as some of the then Transkei government officials were reputed to have interests in it. The purpose of the bomb was to indicate that such casinos and hotels were unacceptable and to show white and other people that they would not be safe if they supported such apartheid institutions. The bomb was thus directed at this symbol.
The Applicant accepts that two people died as a result of the explosion which occurred on 18th April 1986 and that several people were also injured in the incident. The identities of these injured persons and the deceased are unknown to the Applicant. He also foresaw that the implementation of this plan could result in death, injury and damage to property.
The Committee is satisfied that the Applicant has complied with the requirements and the formalities of the Act in regard to this incident.
In the result the Applicant is GRANTED amnesty in respect of the following offences:
1. The attack on 29 July 1986 on the Madeira Street Police Station, Umtata:
(a) Eight counts of murder related to the killing of:
Mlibo Namba, Louis Bonisile Mama, Nkosiyezwe Zondi, Zamani Mveka, Daliwonga Notote Mhaya, Warrant Officer Ndabeni, Gladstone Mlungiseleli Mooi and Mxolisi Ngwaqa;
(b) Five counts of attempted murder related to the incidental attack on the persons of:
Prindile W. Fatman, Zwelidumile Abel Nxitywa, Fezile Majobela, Stembele Mvulana and Siphiwe Ndongeni;
(c) Malicious damage to the said police station.
(d) The unlawful possession of firearms and associated ammunition.
2. The shoot-out at Dweza on 22nd January 1986:
(a) One count of attempted murder in respect of Ncedile Ephraim Kupe;
(b) Unlawful possession of firearms and associated ammunition. 3. Attack during 1986 on the Botha Sigcau Building:
(a) One count of murder in respect of Colbert Thamsanga Ndzobole;
(b) One count of sabotage;
(c) Unlawful possession and the transportation of explosives in contravention of the law related to explosives.
4. Attack on 18th April 1986 on the Mzamba Wild Coast Sun Hotel:
(a) Two counts of murder in respect of two unidentified victims;
(b) An undetermined number of counts of attempted murder in respect of those injured during the resultant blast;
(c) One count of sabotage;
(d) Unlawful possession and transportation of explosives in contravention of the law relating to explosives.
5. The committee is of the opinion that the relatives and/or dependants of the persons referred to in paragraphs 1(a), 2(a), 3(a) and 4(a) as well as the persons mentioned in paragraph 1(b) and 4(b) are victims as contemplated in the Act and they are therefore referred to the Reparation and Rehabilitation Committee for consideration in terms of Section 22(1) of the Act.
DATED AT CAPE TOWN THIS DAY OF 2000.
R PILLAY, J
D POTGIETER A.J
MR I LAX AC/2000/241
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.
SIPHO MOSES MBAQA APPLICANT
(AM 0010/96)
DECISION
The applicant filed two applications for amnesty. They were both registered under the same number 10/96. The first application is dated 27 March 1996 and was received by the Amnesty Committee on 9 April 1996.
The second application was received during July 1996 and was signed during July 1996 the applicant but not dated.
In the first application the applicant seeks amnesty in respect of:-
1. The illegal possession of explosives.
2. Culpable homicide.
3. Attempted murder.
He was convicted in respect of the three offences and sentenced to 12 years imprisonment. He denied guilt at the hearing and still maintains that he was wrongly convicted and that he as well as his co-accused were innocent.
Amnesty cannot be granted on the first application because the applicant maintains that he did not commit any offence or delict.
In the second application the applicant only applied for amnesty in respect of the illegal possession of explosives, namely a hand grenade. In this application he confessed that on 25 May 1993 he had a hand grenade in his possession. He stated that this hand grenade was indiscreetly handed to him by MK Commander Lawrence Mbatha and was returned to him.
It is common cause that a hand grenade exploded on 25 May 1993 after a protest march to the offices of the representative of the Bophuthatswana government in Kimberley, killing one person and injuring 40 others. There is no evidence that the hand grenade which caused the explosion was the same hand grenade which the applicant had in his possession and which according to him he handed back to MK Commander Lawrence Mbatha.
After considering both applications the Committee concluded as follows:-
Amnesty is REFUSED in respect of the following offences:-
1. The killing of Manne Mokone on 25 May 1993 at Kimberley.
2. The attempted murder on an unknown number of persons on 25 May 1993 at Kimberley.
Although the third offence, namely illegal possession of explosives, was also included in this application, the Committee concluded that the fact that he denied guilt in that application, did not include a denial for the possession of the hand grenade. That also explains why he later filed a separate application in this connection.
In the result amnesty is GRANTED in respect of the illegal possession of a hand grenade on 25 May 1993 at Kimberley.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000.
AC/2000/242
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.
ZANEMVULA PETRUS MATOSA APPLICANT
(AM 6010/97)
DECISION
The applicant applied for amnesty and annexed a "Declaration" to an amnesty form completed by him in which paragraph 8 to 13 were not completed.
He seeks amnesty in respect of:-
"In the event and to the extent in which any of the above mentioned institutions and structures including the SDU's could in any manner whatsoever be regarded as the kind of acts or omissions or offenses envisaged in the Promotion of National Unity and Reconciliation Act, we collectively take full responsibility therefore applying for amnesty in respect thereof".
The above quotation forms part of the Declaration a copy of which is annexed hereto as annexed "A".
The granting of amnesty would amount to the granting of a general amnesty
No specific offence or delict mentioned.
After a request for further particulars the annexed letter Annexure "B" was received.
In the result amnesty is GRANTED to the applicant in respect of the illegal possession of explosives and the malicious damage of the Jukies Ice Rink at Welkom during 1985.
SIGNED ON THIS THE DAY OF 2000. AC/2000/243
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.
MAYNARD KHANDIZWE NHLABATHI APPLICANT
(AM 6485/97)
DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). Although the amnesty application form itself only refers to one incident, namely "mob-rioting" during 1978 at Johannesburg, the Applicant added further incidents in a letter addressed to the Amnesty Committee dated 8th January 1997 which refers to the following incidents:
1. Unlawful carrying of passengers (Piet Retief) -fined R100.00
2. Possession of stolen property - fined +/- R60.00
3. Mob-rioting in Johannesburg (sentenced to 4 years)
4. Helping freedom-fighters crossing into South Africa from Swaziland (1984 - 1990)"
We approach the application on the basis that the original application form has been amplified to the extent of the further incidents added in the letter of 8 January 1997.
In view of certain discrepancies between the Applicant's record of previous convictions and the particulars in respect of the further incidents, Applicant was called upon to clarify the discrepancies identified in a letter dated 4 August 2000. After some delay Applicant telefaxed a response to the Committee on 28 September 2000.
The further particulars have not clarified the uncertainty surrounding the exact nature of the offences in question. The Applicant in fact joined issue with the content of his record of previous convictions. He argued that the police purposely made these previous convictions appear as common crimes. The only explanation proferred by the Applicant in this regard is his allegation that the police described the offences in such a way as to suit their purposes. We are not persuaded that there is any merit in this argument. It is clear that the offences reflected on Applicant's record of previous convictions, were committed prior to his establishing ties with the African National Congress outside South Africa. It was only subsequent to this stage that the only offence, patently associated with a political objective, namely transporting ANC freedom fighters into South Africa, was committed.
Having carefully considered the matter, we are not satisfied that the following offences constitute acts associated with a political objective as envisaged in Section 22 of the Act:
1. Unlawful carrying of passengers at Piet Retief;
2. Possession of stolen property;
3. Mob-rioting in Johannesburg.
Amnesty is accordingly REFUSED in respect of these incidents. We are satisfied that Applicant's conduct in assisting freedom fighters to enter South Africa from Swaziland constitutes an act associated with a political objective. Amnesty is accordingly GRANTED to the Applicant in respect of all offences arising from these activities which occurred during the period 1984 - 1990.
DATED AT CAPE TOWN THIS DAY OF 2000.
AC/2000/244
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.
JOHANNES POPE MOSHOALUBA APPLICANT
(AM 8043/97)
DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). The matter relates to Applicant's unlawful possession of an AK47 assault rifle and ammunition on or about 19 September 1993 at or near Thokoza, Gauteng. At the relevant time Applicant was a member of the African National Congress ("ANC"), Thokoza and was involved in activities of the Self- Defence Units ("SDU") in Thokoza, established at the instance of the ANC.
The Amnesty Committee has dealt with numerous applications for amnesty arising out of SDU activities, particularly in Thokoza and surrounding areas of the then East Rand. Ample evidence has been led at these hearings concerning the political violence that engulfed these areas during the early 1990s and the activities of pro-ANC communities in arming themselves pursuant to this conflict.
Applicant indicates in further particulars to the application that the firearm in question was entrusted to him by his SDU commander, the late Mr Oupa Matshephe. He intended to hand the weapon over to the police at the time when it was found in his possession on 19 September 1993. We should interpose here that it has been common cause at SDU hearings that after some measure of peace was established in the said areas of conflict just prior to the 1994 democratic elections, there was a call for all unlawful weapons to be handed over to the authorities. This was largely acceded to and special public ceremonies were arranged, some in Thokoza, where arms were handed over.
Having carefully considered the matter, we are satisfied that the application complies with all of the requirements of the Act. Amnesty is accordingly GRANTED to Applicant for the unlawful possession of an AK47 assault rifle and ammunition on or about 19 September 1993 at or near Thokoza, Gauteng.
DATED AT CAPE TOWN THIS DAY OF 2000
AC/2000/245
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.
GERALD HERMAN GIOSE APPLICANT
(AM 8010/97)
DECISION
The Applicant, Gerald Herman Giose, is hereby GRANTED amnesty for the following offences committed during the years 1960 to 1963 and 1974 to 1994; a. theft of (commandeering) motor vehicles; b. battery, and
c. leaving the Republic of South Africa without valid travel documents.
SIGNED AT CAPE TOWN THIS THE DAY OF 2000 AC/2000/246
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.
SANDILE GERALD SIZANI APPLICANT
(AM 7144/97)
DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The matter relates to offences committed during two different time periods, namely 1977 until 1986 when Applicant actively participated in the armed struggle of the African National Congress ("ANC") as a member of its armed wing Umkhonto weSizwe ("MK") and the period 1990 until 1993 when Applicant rendered certain assistance to Self Defence Units (SDU) in his capacity as a member of MK in Gauteng. Applicant was convicted and sentenced in respect of his MK activities during 1986 but was never arrested or charged in respect of the SDU activities. The different category of offences will be dealt with separately.
OFFENCES RELATING TO MK ACTIVITIES
The facts in regard to these offences are fully set out in the relevant court records as well as particulars furnished by the Applicant. Applicant joined the ANC in exile during 1977 and received military training as a member of MK. During 1985, Applicant was ordered by his MK commanders to enter South Africa with the objective of pursuing the armed struggle. Applicant entered South Africa during or about October 1985 with a MK unit which was established in the Durban area.
Applicant was eventually arrested and found in possession of various items of arms, explosives and ammunition. None of these items was used to kill or harm anyone. Applicant was eventually convicted and sentenced to 8 years imprisonment in respect of the following offences which all related to his activities as a member of MK:
1. Terrorism;
2. Possession of a Makarov 9mm pistol;
3. Possession of 16 rounds 9mm ammunition;
4. Unlawful possession of:
4.1 6 x SPM limpet mines;
4.2 4 x Russian 158 limpet mines;
4.3 10 x grenades;
5. Unlawful possession of the following explosives:
5.1 4 blocks (1 kg each) of plastic explosives;
5.2 100 metres of detonating fuse;
5.3 30 metres of safety fuse; 5.4 6 SPM limpet mine detonators with lead bars;
5.5 4 RDG 5 handgrenade detonators;
5.6 1 box containing 8 mechanical detonator devices;
5.7 1 box containing 6 mechanical detonator devices;
5.8 4 MUV 11 switches;
5.9 2 mechanical detonator devices;
5.10 1 electric detonator device;
5.11 1 electric time switch;
5.12 14 electric detonator devices;
5.13 1 carton container containing 4 SPM lead bars;
5.14 5 blocks of 400 grams of TNT;
5.15 4 blocks of 200 grams of TNT;
5.16 20 mechanical detonator devices;
5.17 7 electric detonator devices;
5.18 10 RGD 5 handgrenade detonators.
6. Fraud, in that Applicant was found in unlawful possession of a forged reference book no. 5501981.
OFFENCES RELATING TO SDU ACTIVITIES
These activities occurred during the period 1990 until 1993 when Applicant was a member of the PWV regional command of MK. During this period, Applicant's duties were to store and assist the MK regional command to distribute various firearms and ammunition to members of the SDU in the PWV region, Gauteng. This was done on orders from his superiors within MK and in accordance with the ANC and MK policy of supporting SDU activities at the time.
We are satisfied that the offences for which amnesty is being sought, has clearly been committed with a political objective. We are also satisfied that the application complies with all of the other requirements of the Act and amnesty is accordingly hereby GRANTED to Applicant in respect of the following:
1. All offences arising from Applicant's activities as a member of MK during or about the period 1977 until 1986 including the following offences specified above:
1.1 Terrorism;
1.2 Unlawful possession of a firearm;
1.3 Unlawful possession of ammunition;
1.4 Unlawful possession of grenades, bombs and/or projectiles;
1.5 Unlawful possession of explosives; explosives: 1.6 Possession of a forged reference book.
2. All offences arising from Applicant's activities, as a member of the PWV regional MK command, in support of the SDU activities in Gauteng including he unlawful possession of arms and ammunition.
DATED AT CAPE TOWN THIS DAY OF 2000
AC/2000/247
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.
MAWETHU LUBABALO NTLABATHI APPLICANT
(AM 5693/97)
DECISION
The application stated that applicant was an APLA Regional Counter Intelligence Officer. He applied for amnesty in respect of assaults on Messrs. Matsokoshe and Tebogo in a PAC camp in Tanzania during 1992/1993.
He further stated that the assaults were carried out with the approval of Mr Bafana Yose, the military attaché' of APLA in Tanzania.
The purpose of the assaults were to discipline the two cadres who were members of APLA for their involvement in stealing APLA property and thereby undermining army discipline and the building of an effective army to attack and overthrow the government of South Africa.
As was stated in decision AC/2000/149 it is accepted that military forces had to maintain strict discipline in order to operate successfully. Offences associated with that objective would fall within the definition of acts, omissions or offences associated with a political objective.
Amnesty is therefore GRANTED to the applicant in respect of the assaults on Messrs. Matsokoshe and Tebogo and the two are recommended in terms of Section 22 of Act 34 of 1995 for consideration to be declared victims in terms of the Act.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000 AC/2000/248
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.
HEINRICH JOHANNES GROSSKOPF APPLICANT
(AM 5917/97)
DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). The original application form which was completed by the Applicant without any legal assistance, simply refers to a bomb explosion during 1987. In processing the application, the Amnesty Committee experienced considerable difficulty in locating the Applicant. It was only shortly before the date of the amnesty hearing, that the Committee ascertained the whereabouts of the Applicant in the United Kingdom where he has been resident since 1991. In a prompt response to a request by the Committee, Applicant furnished further particulars relating to his application by telefax on 29 September 2000. In terms of these further particulars, the application relates to the following incidents:
1. Bomb attack on Witwatersrand Command Headquarters of the South African Defence Force ("Wits Command") in Johannesburg on 31 July 1987;
2. Creating a cache of military material in the vicinity of the Emmarentia Dam, Johannesburg on or about 24 July 1987, consisting of the following:
2.1 4 x limpet mines with fuses and detonators;
2.2 2 x hand grenades;
2.3 1 x AK47 rifle with ammunition.
3. Non-combat support for sanctioned military operations carried out by operatives of Umkhonto we Sizwe's Special Operations Unit during or about the period September 1988 until December 1989.
In view of the fact that Applicant was not legally represented when submitting the application for amnesty and given the fact that the request for further particulars was only communicated to the Applicant at a very late stage in the proceedings, we are satisfied that the failure to raise the further incidents at an earlier stage, is not due to any fault on the part of the Applicant. We accordingly approach the application on the basis of the original application form as amplified by the further particulars dated 29 September 2000.
Applicant, who travelled from the United Kingdom for that purpose, testified at the amnesty hearing in support of the application. Although one of the victims of the bomb explosion attended the hearing, and the interests of all victims of the bomb attack were represented at the hearing by Mr Richard, no evidence was tendered in opposition to the application. The thrust of Applicant's testimony is contained in a statement which was handed in at the hearing as exhibit "A". Applicant's version can be summarised briefly as follows.
ATTACK ON WITS COMMAND Applicant was born into an Afrikaner family and was exposed to a wide variety of influences and perspectives due to the fact that their circle of family friends cut across various spectrums of South African society. As a relatively early stage in his life, Applicant became aware of the iniquities and injustices which resulted from the prevailing apartheid political system. Applicant was exposed for the first time to the African National Congress ("ANC") in visits overseas during the early 1980's. This left a deep impression upon the Applicant who realised that he could identify with the policies and principles of the ANC. Applicant's resistance to the system of apartheid intensified as a student at the University of Witwatersrand during the middle 1980's. This eventually culminated in the Applicant leaving South Africa and joining the ANC in Swaziland during January 1986. Applicant later decided to join Umkhonto weSizwe ("MK"), the military wing of the ANC and received military training under the auspices of MK. At the conclusion of his military training, Applicant joined the Special Operations Unit of MK in Lusaka, Zambia. After discussions with the then commanders of the Special Operations Unit, Aboobaker Ismail and Johannes Mnisi, it was decided that Applicant would be deployed as a single operative within the unit. The effect of this arrangement was that Applicant would be operating on his own and would report directly to the commanders of the Unit. Plans were then made to infiltrate Applicant into South Africa and to this end appropriate targets were selected for attack. One of these targets was the South Africa Defence Force, Witwatersrand Command Headquarters in Johannesburg. Applicant was furnished with the existing reconnaissance reports in respect of this target which formed the basis of the planning of the attack upon the building. A considerable amount of thought went into the decision to identify the Wits Command as a target for attack. It was accepted that the possibility could not be ruled out that there could be civilian casualties in the attack. The planning of the operation did encompass ways of reducing the possibility of civilian casualties which included the time of the attack, the type of explosives to be used, the particular location of the attack and the like. After careful consideration of all of the relevant factors, it was decided that the attack would be perpetrated by means of a car bomb. Applicant was eventually infiltrated into South Africa with the necessary material and explosives and ordered to execute the attack. Applicant established a base in the vicinity of Johannesburg and embarked upon the necessary reconnaissance and further detailed planning for purposes of the attack. Amongst the matters which Applicant had to attend to, was the preparation of the vehicle to be used for the purpose of the car bomb. After having acquired the necessary vehicle, Applicant performed extensive tests in order to ensure that the attack would proceed according to plan. This would include Applicant parking the vehicle shortly before the planned explosion opposite the premises of the Wits Command and engaging the necessary mechanisms to ensure that after Applicant had disembarked, the vehicle would collide with the building immediately prior to the explosion. To this end, Applicant had to manufacture an appropriate mechanism that would propel the unmanned vehicle after Applicant had parked it opposite the building. After having satisfied himself that everything was in order for executing the attack, Applicant proceeded to the Wits Command building using Quartz Street, which was the quietest of the streets running past by the building. Just prior to 09h45 on 30 July 1987, Applicant parked the vehicle containing the car bomb in a parking space in Quartz Street opposite the Wits Command building. Applicant engaged the necessary mechanisms to ensure that the vehicle would move on its own and collide with the structure of the building whereafter the car bomb would detonate. He noticed three sentries on duty on the corners of the building and ensured that he had not attracted their attention before he disembarked from the vehicle and proceeded into a nearby shopping complex in accordance with the preconceived plan. Shortly after having left the vehicle, Applicant heard the engine of the vehicle revving high followed by a loud explosion that shattered all the glass in his immediate vicinity. He immediately started running away from the point of the explosion joining other people inside the shopping complex doing the same. Some distance away from the shopping complex, Applicant removed certain items of conspicuous clothing which he was wearing as a decoy with the purpose of avoiding being easily identified after the incident. He used pre-arranged transport to immediately travel to Botswana where he contacted his commanders at an agreed rendezvous point. He eventually travelled to MK military headquarters in Lusaka where he reported back to his superiors and was further debriefed by MK personnel. Applicant subsequently received further military training with a view to being redeployed inside South Africa for further operations. In view of the fact that his identity was disclosed by the South African Security Forces and political leadership as the person allegedly responsible for a number of armed attacks inside South Africa, the plans for his redeployment were cancelled. Applicant eventually joined the ANC Repatriation Committee which dealt with arrangements and negotiations for the return of ANC exiles to South Africa. For considerations of personal safety, Applicant did not return to South Africa but instead moved to the United Kingdom where he is still presently resident.
Having carefully considered the matter, we are satisfied that the attack perpetrated by the Applicant was primarily aimed at a political enemy of the ANC and MK at the time, namely the South African Defence Force and by the same token the South African apartheid state. The injuries caused to civilians in the attack, were foreseen but was clearly not the primary objective of the attack. Although approximately 30 people were injured, there were no fatalities. In our view, the incident constitutes an act associated with a political objective as envisaged in the Act. We are, moreover, satisfied that the Applicant has made a full disclosure of all relevant facts and that the consequences of the attack are not disproportionate to the objective having been pursued. We are accordingly satisfied that the application complies with all of the requirements of the Act and Applicant is GRANTED amnesty in respect of all offences and delicts arising from the car bomb explosion in Quartz Street, Johannesburg on or about 30 July 1987.
In our opinion the persons injured in the said bomb explosion are victims for the purposes of the Act and are accordingly referred for consideration in terms of Section 22 of the Act.
ESTABLISHMENT OF ARMS CACHE
Applicant indicated in his testimony that in accordance with his orders, he established an arms cache with the arms, ammunition and explosives not needed for the purposes of the attack on the Wits Command. This was done in the vicinity of the Emmarentia Dam, Johannesburg on or about 24 July 1987. He conveyed the details concerning the arms cache to his superiors in MK upon his return from South Africa.
Having considered the matter, we are satisfied that the establishment of the arms cache was clearly linked to the armed struggle in which the ANC and MK were engaged at the time and as such constitutes an act associated with a political objective as envisaged by the Act. Accordingly amnesty is hereby GRANTED to Applicant in respect of all offences and delicts arising from his establishment of an arms cache consisting of the items referred to above in the vicinity of the Emmarentia Dam, Johannesburg on or about 24 July 1987.
SUPPORT FOR MILITARY OPERATIONS
Applicant further indicated that after having re-joined the Special Operations Unit in exile subsequent to the Wits Command attack, he participated in the activities of its command structure. This entailed furnishing the necessary support for combat units ordered to carry out military operations inside South Africa. These units were thus enabled to continue prosecuting the armed struggle against the South African authorities. Applicant was a member of this command collective during or about the period September 1988 until December 1989. He is understandably unable to specify the attacks actually perpetrated by MK units as a result of the general support supplied by the command collective.
Having considered the matter, we are satisfied that Applicant's participation in the support furnished to MK units by the Special Operations Command contributed to attacks eventually carried out by these operatives. As such, Applicant would in our view have incurred legal liability for any of these attacks. We are also satisfied that Applicant's actions in this regard constitute acts associated with a political objective as envisaged by the Act. Accordingly amnesty is GRANTED to Applicant in respect of all offences and delicts arising from his activities as a member of the command collective of the Special Operations Unit of MK in furnishing the necessary support to operatives of MK carrying out military operations inside South Africa during or about the period September 1988 until December 1989.
DATED AT CAPE TOWN THIS DAY OF 2000
JUDGE DENZIL POTGIETER
ADV F BOSMAN
ADV N SANDI AC/2000/249
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.
HUMPHREY LUYANDA GQOMFA 1ST APPLICANT
(AM 0949/96)
LUVUYO KULMAN 2ND APPLICANT
(AM 1638/96)
ABEL OUPA KGOTLE 3RD APPLICANT
(AM 5619/96)
DECISION
These are applications for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995. The applicants are seeking amnesty for the following crimes:-
1. Arson;
2. Malicious Damage to Property;
3. Unlawful possession of petrol bombs and explosives and firearms in contravention of the Explosives Act and the weapons Act.
It is necessary to commence our decision by pointing out that the applicants are former members of the Azanian People's Liberation Army ("APLA"), the military wing of the Pan Africanist Congress ("the PAC"). They have already received amnesty for a number of crimes which were committed on behalf of the PAC and its struggle against the previous political order. The offences in respect of which they are seeking amnesty relate to attacks on white farms which they carried out in the Lady Grey and Zastron areas in the early 1990's.
The applicants were deployed by APLA inside the country to carry out a number of operations on its behalf. One of the targets were white farms which were seen as targets because they belonged to white farmers who supported the government of the day and the economy. These farmers were also being attacked because of the harsh conditions to which black labourers in general were subjected. It was believed that if these farmers were attacked the white farmers would be forced to leave the area and thus make space available for land occupation by the African people on whose behalf the PAC was waging a struggle. One of the objectives of the attack was to induce the white farmers to put pressure on the government of the day so that it could end its policies of Apartheid.
At the hearing it emerged that it was extremely difficult for the applicants to identify the farms which they attacked with any certainty. In the first place they did not know the area very well and relied on the knowledge of co-perpetrators whose testimonies were not before the Committee. The attacks took place at night and they did not know the names of either the owners or the names of the farms. With the attendance of Mr and Mrs Myburgh and Mr Fanie Schlebusch of the hearing it was at last possible to determine that two of the farms were Fairview and Wilgespruit which were located in the Lady Grey area. At the time of the spate of attacks the applicants were deployed at Sterkspruit under the command of Happy Letlapa Mphahlele, a member of the APLA High Command. Their Regional Commander was "Ace" Masitolo whose full names and further particulars are unknown to the applicants.
Gqomfa testified that on or about the 18 March 1992 he was instructed by Mpahlele to attack in the Lady Grey area. It was himself, Kulman and Kleintjie (now deceased), Scorpion, Tatina, King and Roger. Before launching the attack on the Fair View Farm they first conducted a reconnaissance of the area which was done by Gqomfa and Kleintjie since they had a better knowledge of the area. They did not know who the farm belonged to but their investigations showed that the house there was always locked. There was no white farmer living on the farm and only black workers were there most of the time. When they had finished their monitoring of the place they attacked the place late at night. They were armed with petrol bombs, 7.65 pistols and pangas. Gqomfa was the commander of the unit. On arrival at the farm they found that there was no one and the labourers were at their own houses. They attacked the place with petrol bombs. Damage was caused to the house, a bakkie and livestock. Mr Myburgh estimates the damage caused to be in the region of R28000 and about fifty-five (55) sheep were killed in the attack.
The applicants state that it was part of their aim to cause maximum loss by burning livestock which they found on the farm. No person was injured as they knew that there was not going to be any person in the house.
Kulman testified that he also received an order from their regional commander. He further stated that if they had found a farmer in the house they would have killed him as it was part of APLA policy to do so. He also does not know the name of the farm but the attack was carried out by him, Kleintjie and Scorpion. He does not know the proper names of his comrades because they were all using code names. Kleintjie has since deceased and "Scorpion" was used as a code name by several APLA cadres. The reconnaissance was done by Kleintjie. They did not find any person in the house and they were armed with 7.65 pistols and pangas and they observed that the house was being renovated.
They set the grass on fire and, unfortunately for them, some of the Molotovs which they were carrying were not effective.
Kulman testified that he was involved in two (2) farm attacks in the Zastron farming area. In the 1st attack it was himself, Roger and Induna. Kleintjie had already done the reconnaissance and informed them that there were no people who occupied the house. White farmers in the area were believed to be part of the Commando Structure of the army. He is not sure of the exact location of the farm but it is near a river between the Transkei and the then Republic of South Africa. No injuries were caused to any person as a result of the attack.
The second farm was attacked in or about 1992. Kulman did the reconnaissance and there were five (5) of them, namely, himself, Scorpion, Titina, King and Roger. These farmers' houses were being occupied by blacks and this they understood to be an abuse of blacks as shields in the struggle. They were armed with firearms and hand grenades. As they were approaching the house dogs started barking but they were able to contain them. The labourers who were inside the house screamed and the applicant and his compatriots withdrew. Before they left they burnt the veld and destroyed a grenade which had been dropped by King did not explode.
We have carefully considered the matter and we are satisfied that the acts committed are actions associated with a political objective. It further appears that the applicants have given a full disclosure of the relevant facts. Amnesty is therefore GRANTED for all the offences and any delict flowing from the said actions.
It is recommended that the Myburgh and Schlebush families be declared victims in terms of the Act.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000
JUDGE J MOTATA
ACTING JUDGE C DE JAGER SC
ADV N SANDI AC/2000/250
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.
MANGALISEKELE BHANI 1ST APPLICANT
(AM 5708/97)
SILIMELA QUKUBONA NGESI 2ND APPLICANT
(AM 6020/97)
LERATO ABEL KHOTLE 3RD APPLICANT
(AM 5619/97)
STANLEY MICHAEL TSHOANE 4TH APPLICANT
(AM 5901/97)
MOALUSI MORRISON 5TH APPLICANT
(AM 5953/97)
GEORGE THABANG MAZETE 6TH APPLICANT
(AM 6630/97)
DECISION
The above applicants apply for amnesty for an attack on the Sentra Hyperserve Wesselbron Supermarket. The incident took place on 3rd of July 1993. Cash and cheques to the value of approximately R9000.00 was stolen. Five people were killed and four people wounded.
At the hearing Mr Mbandazayo, who appeared for the applicants, moved an application on behalf of one Mohlalo Paulus Mohapi. Mohapi had told him that he had earlier in 1995 applied for amnesty. The TRC has no record of such an application. The suspicion is that if Mr Mohapi indeed filled out an application, it would probably have been for further indemnity, since the Amnesty provisions only took effect effectively from April 1996. By agreement it was arranged that Mr Mbandazayo could lead the evidence of Mr Mohapi and should proof of submission of a duly completed application not be furnished to the Amnesty Committee within one month as from 18th August 1998, it would be accepted that no application exists. No further communication on this issue has since been received and the committee finds that no proper application was made in terms of the act.
The salient facts, extracted from the various versions of the applicants, related to the incident, are the following:
The Wesselsbron Supermarket (Sentra Hyperserve) was the target of an armed robbery, planned and/or executed by the Applicants. On the 3rd of July 1993, the plan was executed, cash and cheques, were taken (to the value of approximately R9000.00) and 5 persons were killed and 4 injured when some of the applicants opened fire on those present in the building.
The Applicants mention that they were either Apla members or members of Task Force; that they were raising funds for Apla through conducting the robbery and that they shot those present according to the policy of Apla and/or implied instructions by Apla Command. The victims opposed the applications on the basis that neither the robbery nor the shooting was associated with a political objective and specifically that the shooting commenced when "things started going wrong" for the applicants.
First Applicant, Bhani, a member of Apla, based in Umtata, received instructions in Umtata from the Director of Operations of Apla, Letlapha Mpahlele, to go to Welkom, there to be received and deployed by the Third Applicant, Khotle, who was regional commander in the Free State, and who took him to Wesselsbron. His instructions from Umtata were to "identify a target" which he then did. He reported to Khotle for him to seek approval from the Director of Operations for the execution of the operation. The identified target was the Wesselsbron Supermarket, because the owner was thought to be a member of the AWB and amongst the people who normally did their shopping there were members of the AWB and members of the SAP. Khotle told him that the target was approved by the Director of Operations and an order was given to attack the target. He recruited the Sixth Applicant, Mazete, as a member of Task Force. He met him there in Wesselsbron, seeing him wearing a T-Shirt of their organization (presumably PAC) and he saw him at meetings. Mazete assisted him in drawing up a map of the Supermarket, but he was not told that the Supermarket was to be attacked.
Arms, consisting of R4 rifles, one 38 revolver, a .32 revolver, two rifle grenades, two hand grenades, one F1 and two M26 grenades were delivered from Umtata to Welkom. Bhani took one R4 and handed the rest to Khotle.
On 3rd July 1993 Bhani decided on an attack on that same day. The day was suitable because he had earlier established that the members of the AWB and Security Forces liked to linger around the supermarket and stay there chatting on Fridays and Saturday evenings. he decided this in consultation with Khotle. The unit consisted of five, Bhani, one Sebenzile who died in 1994, the Second Applicant, Ngesi, one Sibande whose whereabouts are unknown and Hale, (Tshoane, the 4th Applicant) the driver. All except Tshoane, were armed. The other members of the unit arrived in Wesselsbron at approximately 20h30. They were briefed for the first time on their arrival by Bhani and they had to hurry since the target was closing at 21h00.
The plan was for Bhani to lead the attack, Ngesi and Sebenzile to follow him into the Supermarket and Sibande would guard the door. Bhani entered, the other two following him as planned. He ordered those present to lift their hands and the other two to shoot. He then told them to take the money and they withdrew. They got R4000.00 in cash and some cheques, burnt the cheques and surrendered the money to Khotle. Five people died and three were injured. There were no other people in the supermarket.
Tshoane and Sibande left for Welkom and Sibenzile and Ngesi remained in Wesselsbron with Bhani at Mnyagene Location. They took the firearms to Mazete and then proceeded to Welkom, reported to Khotle and gave him the money.
Later Sibande, Ngesi, Sebenzile and Khotle went to Transkei, after the latter had arranged accommodation for Bhani in Kroonstad. The reason why Khotle withdrew to the Transkei was that Bhani was going to take over the Free State as regional commander. He shortly afterwards also withdrew and went back to Transkei.
The reason for the attack was to fundraise because they did not have financial resources. Asked by Mr Mbandazayo about how he feels about the loss of life, Bhani said it was obvious that people would die because in war people die. When further questioned by the panel, as to the presence of AWB and SAP members at the time of the incident, Bhani said that they might have been there but their plan was to shoot anyone that was in the shop, as long as they were white.
Further questioned by the Evidence leader on behalf of the victims, putting it to Bhani that the victims were first told to lie down, he, denying, replied that he had told them to lift their hands, it was PAC policy to shoot and kill the white man even after he had lifted his arms so that the government could feel the pressure. Robbing and killing go hand in hand, and the instruction was to kill and take money. It was the year of the Great Storm and in May and June, PAC offices had been raided. Although there were negotiations, the struggle had to continue for liberation.
Questioned by Mr Steenkamp on their not disclosing their membership during the trial, he said that they were trying to be found not guilty.
In re-examination Bhani said he was simply deployed to Welkom by the Director of Operations; he was not given any instructions as to what to do. He was going to seek and identify a target on his own. There was no date arranged for his taking over as Free State Regional Commander. That decision would have come from Khotle and the Director of Operations.
The Second Applicant, Ngesi, testified that he had been deployed in Welkom in March 1993 by the Director of Operations and the deputy Director Sipho Mulelame Thuma. He was to meet Khotle from whom he would get his instructions. He was taken to Wesselsbron where he stayed for two days. He did not like the place and went back to Welkom. He commuted between Welkom and Wesselsbron to identify targets. He identified the Wesselsbron Supermarket. Everyone at the taxi-rank would patronize the Supermarket. Even the Police and AWB go to that shop.
On the day of the attack he, on instruction of Kotle, travelled to Wesselsbron with Sibande, Sibenzile and the driver Tshoane. They were instructed to meet with Bhani who would brief them about the operation. Khotle gave them firearms.
On arrival Bhani told them the target was the Supermarket. He, Ngesi, already knew that. They entered the Supermarket, Bhani, Ngesi and Sebenzile, in that order. Bhani instructed them to fire. He, Ngesi, started shooting everything before his eyes. After that Bhani told them to take the money. Asked as to how he felt about the incident, he said that he was happy to have participated in the struggle. The people who died don't belong to the country. He was not asking forgiveness. Yet all were now united in this new South Africa.
In cross-examination on behalf of the victims he said he was only instructed to go to Wesselsbron. Bhani there told them what the target was, that they would kill the people and take the money. They did as they were told. The people were not lying down, they had their hands up in the air when they were shot down. Asked about a black person who testified at his trial he said that the person was not there and he suspects the person was paid to give that evidence. They were not told to shoot before they got to the supermarket. The instruction only came from Bhani when they were at the Supermarket.
Asked by the committee to explain the criteria of what a target was, he said the Supermarket was chosen because it was frequented by police and AWB, with uniforms and badges; that was an example of target. As long as you know a person was a policeman, he was your enemy. They would identify as targets places where a lot of boers and a lot of policemen were. Boers and white persons has the same Xhosa word. The Commander would identify the target.
After they had shot the people, there was a lady who they ordered to open the till. She opened the 3 tills and the three of them all emptied a till each and put the money in their pockets. The lady was then also shot and they took the money to the commander. The other people were all shot before any money was taken. The lady was only spotted after the others had been shot. They then grabbed her and she opened the tills. Asked as to why this lady was not also shot following his instruction he said "I wanted money".
The Third Applicant, Khotle, also gave evidence. He confirmed that he was the regional commander at the time and ordered the attack after receiving approval from the Director of Operations. He received Bhani, took him to Wesselsbron where he had to look for potential targets. He stayed in Mnyagene Township. After some time, he returned to Welkom and reported that he had identified the target. He gave as first reason that the place was frequented by Security police and AWB members. He, Khotle, then did his own reconnaissance on a Friday and Saturday and established that what Bhani was saying was true. On the Friday he boarded a taxi, went to the store at around 19h00 and bought a soft drink and some peanuts. At the door, he saw a person with a pistol, both when he entered and when he left. He stayed over at Mnyagene that night and late afternoon on Saturday returned to Welkom but on his way, waiting at the taxi rank, he went inside and looked again. He found a different person there, armed with a pistol, talking to other people. On the second week he again went to the store and found the same situation, always one person armed. He went to the township and left the following morning for Welkom.
From Welkom he went by taxi to Umtata where he met the director of Operations Lethlapa Mpahlele and reported on the situation in the Free State and the target in Wesselsbron. Mpahlele then gave approval and said that he should return and instruct the unit, led by Bhani, to execute the operation.
No one else except the three of them had knowledge of the impending attack. It was no problem identifying a target:- Oppressors are the Europeans and they were targets. They put themselves as a target. Anything represented by Europeans in Africa is a target. The Supermarket was a target because it would give them the resources to attack other targets. The Supermarket was a weak target and the tactics were to attack where the enemy was weak. When asked how he could describe the target as weak, having said it was chosen because it was frequented by police and AWB - both wearing uniforms and brandishing arms, and having scouted the armed guards at the door with the police station just up the road from the Supermarket, he replied that he knew the police were relaxing over weekends and go and drink in the township. They saw it as an easy target. Asked as to why he personally corroborated what Bhani had told him, he said he had known before that the place was frequented by the police and AWB. He received no information from Bhani he had not already had. But he had to be responsible to his seniors.
He got the arms from Umtata. Sebenzile was the courier. Morrison had already gone back. He gave a rifle to Bhani, retained one for himself and gave three to Ngesi to hide.
He gave the instruction to the commander "let us kill everything that is alive in that Supermarket". He said this as a normal person. You cannot give a gun to a person and not expect him to kill with that gun. The Director of Operations knew that people would be killed.
In the written application, nowhere did Khotle disclose the planning of killing of people. The objective is only listed as financially maintaining Apla. The instruction was only listed as that of fundraising operations. When this was put to him (by Mr Steenkamp on behalf of the victims) to explain, he said that if it was not in his application, he was at the hearing to add what was not written. The reason for the omission was a human error.
On further questioning by the chairperson Khotle said that part of the instruction he gave was explicitly not to kill or involve any-one of the oppressed who might have found themselves in the supermarket.
When asked by Mr Steenkamp how he reconciled this with his earlier evidence about killing everything alive, he said he understood Steenkamp's problem, but the hearing is continuing and he does not think it will be a problem. In re- examination by Mr Mbandazayo he said that he did not add the explanation originally but his instruction was to kill anything alive except the oppressed.
Bhani was sent to Welkom at his (Khotle's) request when he earlier visited Umtata.
When further questioned about this, he reverted to the position that the mission was to fight and to take money. That is how they operated at the time, during the period of oppression. He had though ever taken part in any such operation. He knew it because his superiors had told him, specifically Khotle.
The fifth Applicant, Morrisson, also testified. His evidence only related to the supply of weapons from Umtata to Welkom. The Deputy Director of operations in Umtata, Sipho, Bulelani Xuma sent him to take Sebenzile to Tabong in Welkom where they were to meet up with Khotle, to whom they had to hand the weapons and ammunition. Morrisson was in logistics and he knew when he was bringing the arms to Welkom that they were going to fight. he did not know though what the target would be. He cannot remember exactly what the weapons were but there were R4's, rifle grenades, grenades, and a lot of ammunition and fully loaded magazines. He had no further involvement.
The Sixth applicant, Mazete, testified that he drew up a map of the inside of the Supermarket at the request of Bhani. He did not know the reason, he was not told and he did not ask the reason. As a member of Task Force they were taught to "reconnaissance", that is why he was able to draw up the map.
The arms used in the attack were left in his place after the attack, but he did not know when this was done. Only after he had learned of the attack, did he realize that the map and the arms were used in the operation.
When further examined he said that when the weapons were dumped at his place by Bhani, he was requested to put those weapons in his house, but he was not told of the attack. He only realized the weapons were used in the attack after his arrest and they were all at the police station. When he drew up the map, it was in the presence of Bhani. No questions were asked or suggestions made. It seems to have happened in silence. He drew the map from memory as he knew the place well, being a patron.
He did see on occasion people in Uniform. Asked to describe the uniform more closely, he said he was speaking of normal Khaki clothes. He said that he knew the Supermarket to close at 20h00. He kept the weapons for about a month and then gave them to Paulos Mohlalo Mohapi for safekeeping. He denied having been paid for his part in the operation, or that any money was left in his custody. He told the police that R9,000 was left with him and that he was paid R50 because he was being tortured.
Mazete, when shown his application, denied that it was his signature on the documents. He denied that he had said the owner of the shop was the local chairman of the AWB. He did not raise that in the application he signed. He had no such knowledge.
He did not know that Bhani would replace him as area commander though. He was however aware that he would be called and sent somewhere because of the pressure he was under. He realized only that Bhani was a possible candidate from his own deductions. Ngesi was another.
In re-examination Khotle had no difficulty in identifying his enemy as the white people.
The fourth Applicant, Tshoane, also testified. He received instructions from Khotle to drive Ngesi, Sebenzile and Sibanda to Wesselsbron where they would meet Bhani who would explain the operation. When they arrived Bhani briefed them about the operation, told them he had made reconnaissance, how they were to accomplish the plan and asked them whether they had any problems. They all said no, they know the place. They were all supposed to enter and shoot the oppressors. He said Ngesi should shoot. Then Sibenzile should also enter and shoot. Sibanda was to stay at the door should there be interference from others with the plan.
He stayed in the car. The others came out of the supermarket, got into the car and they drove to the location where he dropped them off and with Sibanda left for Welkom to Tabong. The weapons were left in Wesselsbron.
Tsoane too in his evidence on being asked whether he had anything to say about the loss of life, said those people were supposed to die. They oppressed the black people. Questioned by Steenkamp on behalf of the victims as to why he wrote in his application that the owner of the Supermarket was the AWB - chairperson, he said he was so told by Khotle. He confirmed that his understanding was that the target was chosen because the owner was the local chair of the AWB and the place frequented by AWB - members. He was told this a week before the attack, when they were discussing with Khotle the investigations he (Khotle) had made of movements of people who frequented the Supermarket. He did not however mention anything about a planned attack. They discussed the AWB merely because he knew that they were fighting the AWB. He wrote in his application that the operation was a success as one AWB- member died and one white Policeman was killed, he got this information from the newspapers. He was not a member of Apla but merely of the Task Force. He was trained in the Transkei to engage in political struggle.
Asked by Steenkamp how the money was taken away, he said they carried it in their pockets. On further questioning by the panel it emerged that he was repeating the evidence given by Ngesi. He then said that he did not even know that any money was taken until he heard Ngesi's evidence. No one ever told him. He did not see any money and he did not know about it.
When asked by the committee again to explain to them the objective of the operation as he understood it, he said that it was to fight those who were oppressing them in their land. The form was filled in by people who represented him while he was telling them what happened. He did not say that they started shooting when they entered the shop.
Neither the signature, nor an initial on his application, was his. He did not say that an AWB member was killed. He was never a member of Apla, as was stated in his application. He was the general secretary of PASO and a member of Task Force. The weapons were never used for any other attack. To the best of his knowledge he did tell the police of the R50 and R9000, that is why he included it in his statement but it was not true.
He said he learnt of the attack by rumour and by the police in the Township streets. When questioned about the R9000, he said he heard it on the radio the day after the attack. He cannot remember for sure whether the amount was mentioned. He thinks it just came out of his head to say R9000.
In re-examination by Mr Mbandazayo, he said that the signature on the application was indeed his signature. It is the application that he filled in, assisted by people at Grootvlei prison. To resolve the situation he was asked by the Committee to provide a specimen signature, which turned out to be very similar to the signature on the application form.
When confronted with evidence by the investigating officer Major Hugo, at the trial that he took Major Hugo to a zinc structure where three R4 rifles, eight magazines and 197 bullets were dug up, he said they were the same weapons Bhani asked him to hide. They were buried there by himself and Mohape. Asked why he had earlier said he gave the weapons to Mohape and never saw them again, he said that when they were taken out by Hugo, they were wrapped in a parcel he could not see the weapons.
On behalf of the victims, evidence was lead by Mr Steenkamp. The first witness was Mr Pedro Ignatius de Castro. His wife Maria Fatima de Castro was killed in the incident. It was a Saturday night at about two minutes to 21h00. He was in the back of the Supermarket attending to one of his workers, Phuli, Solomon Setsuro, who wanted to borrow money, when suddenly he heard people screaming and one gunshot going off. They both ran to the door from the bakery side onto the supermarket. He saw some men. One was carrying what looked like a R4 or AK47. It was very long. He had a briefcase with him. He was smartly dressed.
He pointed Bhani out as this person. He saw his brother Giovanni, his late father-in-law, Kleynhans and his brother in law Sparkham all with their arms in the air. Setsuru (Phuli) started shouting and the men started shooting at them at the back of the bakery. They then ran out the back door. They climbed over a wall and then heard further shots going off. They ran for help. When he returned he just saw everybody lying down, killed and injured. Five people were killed, his wife, Kleynhans Senior, Sparkham and two employees of Telkom. His brother John and Henk and Susan Viljoen were injured. When he left, they were seen with their hands in the air. When he returned he found them shot on the same place where they were standing. His mother's family were there that night at the supermarket, waiting for him as they were going to have a braai. Normally they would close at 20h50 or 20h55 and it would only be his brother and he in the shop. There was about R200,000 in the shop, some in the safe and some under the tills. Nobody in the shop was armed. Neither he nor his brother owned a gun. He did not know whether AWB - supporters would ever visit his shop. He would not know the difference. He was not involved in politics. He does not believe that they came to kill people when at that time there would 99,9% of the time be only the two people closing the business.
He believes they came to rob. It was not trading time, it was closing time.
Before starting his cross-examination, Mr Mbandazayo offered his personal condolences with the loss of De Castro's wife and ironically added that he felt he was expressing the view of the applicants.
De Castro denied that they immediately started shooting people. They only started shooting when they realized things were going wrong for them. When he came from the bakery, no one had been shot. The actual money lost was approximately R8700, part of it comprising of cheques. He did not believe it to have been political. Apla never claimed responsibility for the attack.
Joao Avalero De Castro then testified. He was co-owner of the Supermarket. He had just moved house the previous day and some of his family members came over to his house. They helped him move. They came to the shop that night after having watched rugby at home. They were the late Andries Darker, late George Kleynhans and Giovanni Kleynhans and one Frikkie. They came over and waited for him to close the shop and they would go home together.
Susan and Hendrik Viljoen were having chips and viennas and he himself was having a Russian. He was then standing at the tills where his in-laws were. His wife was at the till as well as Peter's wife and two other persons who had earlier come in. He heard his sister-in-law, Fatima de Castro, scream and then saw four armed black men very quickly walking into the store. They were about 2 - metres away from him, two facing him and two on the other side. They said "Money, lie down".
He then opened two of the four tills, tried to open a third but the key was not in the till. As the people went to lie down, the other men were taking the money out of the till. One shot at the till which he could not open. The others were then shooting all over the place. He lay down, his hands covering his head, praying. They took the money and cheques in one of the tills, two tills were empty and they could not open the fourth till. As they were all lying on the floor, the people were shooting all over the place. He was shot in the foot. The attackers left as quickly as they appeared. He denied any AWB links, even support for a specific political party. He does not believe the attack to be political. They demanded money, ordered them to lie down and to open the tills.
The damages they sustained inside the store, including the cash and cheques must have been about R100,000. The store was closed for two weeks.
Under cross-examination by Mr Mbandazayo on behalf of the Applicants he insisted that the victims were shot where they were lying down. His brother in law, Parker was shot while on his knees. He denies that a woman opened the till. He did it. He was the one who opened the tills. On questions from the committee, he said that they could only get money from one of the tills. The bulk of the money was in the safe. The one till they shot at, they could not open. That till had some money in it. His wife immediately lay down on the floor at the till. Frikkie was an employee of his mother- in-law. He was not wounded.
The police station is not near the Supermarket as the applicants testified. It is the furthest of all the Supermarkets in town. The police station was about 5 blocks away from the Supermarket. Policemen were among their customers and would sometimes enter the store in uniform. He would not be able to identify AWB members. His wife tried to open the third till. He went to lie down as soon they fired at that till. His wife was lying down close to where his deceased sister- in-law was.
Under further cross-examination by Mr Mbandazayo he insisted that all four of the attackers used their weapons.
Mazete was recalled. He said that Ngesi and Bhani approached him around 21h00 on July 3 and they buried the weapons in his shack. There were other people he did not know. Ngesi buried the weapons. Ngesi was one of the people he did not know. Sipho gave him R10 and he went to a public house. He did say in his statement that he left R9000 with him but that was not true. The amount of R9000 just came to his head.
Mazete was lead on a statement which he had made before magistrate; Exhibit E, in which he stated that on the 18th of June Khotle had asked him to hide weapons in his shack, which he did, and that on 3rd July they dug up the weapons and took them to the chairman of the PAC branch in Manyakeng, one Shimee, also known as Andrew. He denied the truth of the contents, saying he fabricated this story in order for the police to release him. On being shown that such statement would not lead to his release but to a conviction, he changed his version saying he was satisfying the police in order for them to cease their torture. The name, Rider, in the statement is not known to him. He did not mention that name in the statement he made to the police. He remembers though seeing the name Rider on a photo shown to him. On further questioning he says he remembers the photo was one of Bhani. When he said he did not know who Rider was, he meant to say he did not know Bhani by that name. Later he said they told them Rider and Sipho was the same person. But the police disputed that. He said that he told the magistrate that the amount stolen was R9000.00, that they counted the money and that he was given R50.00 because he had already told this to the police. When pointed out to him that this appears nowhere in his statement to the police, he persisted that he told the magistrate under threat of the police he had never seen any of the money. Mr Mbandazayo then reopened the question of Mazete's signature. He provided another specimen signature, very similar to the first and to that on the application form.
He was also asked about initials on the application next to an amended paragraph which he earlier denied was his. He said that he realized that it was his initials, but as he did not like the contents in the form, he denied what he knew to be his signature and initials.
Having heard the evidence of the applicants, the committee is aware there are certain contradictions and inconsistencies in the evidence of the applicants. The committee was not satisfied that the applicants were candid and frank as can be shown from the summary of the evidence above. However those issues where they were not so candid relate only to the peripheral issues and not to the core or material aspects of the application. The committee accepts that this incident occurred during what was referred to as the year of the great storm. The amnesty committee has considered numerous applications from PAC/APLA members applying for amnesty for similar robberies and unprovoked killings of white persons during this period and the committee accepts that such conduct was in fact party policy at that time.
The committee is therefore satisfied that the attack on Sentra Hyperserve Wesselbron Supermarket was committed with a political objective and the applicants have made a full disclosure as to their motive as well as what actually took place at the Supermarket.
In the circumstances amnesty is GRANTED to the applicants in respect of all offences and or delicts flowing from or incidental to the attack on Wesselbron Supermarket on 3rd July 1993.
The following victims will be referred to the Reparations & Rehabilitation Committee.
Families of the deceased victims who are:
1. Michael Andries Sparkhams
2. George Christiaan Frederick Kleynhans
3. Herbert Jacobus Van Niekerk
4. Johannes Arnoldus Lourens
5. Maria Fatima de Castro
Injured victims
1. Joao Avelono de Castro
2. Susana Catharina Viljoen
3. Hendrik Viljoen
SIGNED AT CAPE TOWN THIS THE DAY OF 2000
JUDGE A WILSON
ADVOCATE S SIGODI
MR W MALAN AC/2000/014
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.
FRANK BIGBOY KHANYILE APPLICANT
(AM 6108/97)
DECISION
The applicant applies for amnesty for an attack on a substation of the Greytown Police Station at Nhlalakahle township in ;which two people were wounded.
In his written application, the applicant dated the attack as March or April 1992. At the hearing it turned out that the correct date was 28 October 1991. The injured persons were Bongani Nxumalo and another unknown to the applicant, who later turned out to be Sgt TA Zwane. Joining the applicant in this attack were his ANC comrades Jacob Buthelezi, John Kunene, Mdlala, Manabothe and another.
The background to the attack was an ongoing war between the IFP and ANC in Greytown area. The ANC perceived the police, both SAP and ZP, to be in collusion with the IFP. It was decided in the local leadership of the ANC that an attack be launched on the police station at Nhlalakahle and the applicant was to lead the attack. They had hoped to kill or at least injure people in the attack to show that the ANC was alive and strong.
At the hearing, attended by both Nxumalo and Zwane, neither of whom opposed the application, evidence of Nxumalo was led which established the date as 28 October 1991. Nxumalo was shot in his right upper arm, right lower arm and right upper leg. Zwane was shot through his right hand.
The implicated party, Buthelezi, also gave evidence. He confirmed his knowledge of the attack but denied any participation. He said he was older and not a youth league member. None of the other implicated persons gave evidence.
The applicant was never prosecuted and no one arrested for the shooting. Applicant stated that he decided to apply for amnesty in response to a call from the ANC leadership. He did not approach any of his comrades to inform them as he had assumed that they too would heed the call of the leadership.
Having heard and considered all the evidence, the Amnesty Committee is satisfied that the incident took place within the context of the political conflicts of the past, that the attack was associated with a political objective as envisaged in the Act and that the applicant made a full and truthful disclosure of all the material facts relevant to the incident.
The applicant is accordingly GRANTED amnesty for the attack on the Nhlalakahle Police Station Greytown on 28 October 1991 and all acts associated with this attack.
The Committee further finds both Sgt Bongani Nxumalo and Sgt TA Zwane to be victims as defined in the Act and their names are being referred to the Reparation & Rehabilitation Committee for their consideration.
Signed at Cape Town this the 4th day of February 2000.
______Judge S Miller
______Advocate N Sandi ______Mr W Malan AC/2000/015
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.
ANDREW MAKOFANE APPLICANT
(AM 1474/96)
DECISION
The applicant applies for amnesty in respect of the attempted murder of Lucas and Paulos Skosana on 24 December 1992 at Dennilton, Mpumalanga Province.
On a request for further particulars the applicant replied inter alia:-
"We were youths who were calling themselves comrades although we were not affiliated to any political party. Our main aim was to discipline people who were committing crimes".
While out on bail awaiting trial the applicant and his friends also murdered a shopkeeper.
"The reason for this attack was that we realised we had no money, in case we receive a sentence with an option of a fine in our attempted murder case. As a result we committed this second crime as a way of raising money".
On his own version the applicant was not a member or supporter of a publicly known political organisation and the acts committed were no associated with a political objective.
Amnesty is therefore, REFUSED.
Signed at Cape Town on this the 4th day of February 2000.
______
______
______AC/2000/016
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.
MZAMO THABANI MLABA APPLICANT
(AM 6419/97)
DECISION
The applicant applies for amnesty in respect of the murders of Secrete Nkonsenhle Mkhize and Sibusiso Brian Mlaba which were committed on the 16th of March 1994 at or near Hlanzeni in the district of Camperdown and also of being in the unlawful possession, at the same time and place, of a G3 rifle and ammunition.
The applicant testified that he was a member of the African National Congress, the ANC. He received military training in Transkei and was the commander of a Self-Defence Unit, (SDU), in the Kwaximba area where he resided.
He also acted as a bodyguard for Chief Mlaba.
During 1993 the applicant was warned by one Wiseman Mpanga, who was a policeman, that the police at Hammersdale were looking for him as they knew that he had been trained in the Transkei. Mpongo told him that the police had received such information from Secrete Nkonsenhle Mkhize, (hereinafter referred to as "the 1st deceased") who was a police informer. He was thereafter harassed by the police who searched both his and his girlfriend's house.
The applicant then spoke to a local Umkhonto weSizwe (MK) commander, one Linda Xaba, about the matter. Xaba told him that the policy was that informers should be attacked. The applicant then made a decision to kill the 1st deceased.
During March 1994, the applicant established that the 1st deceased was at the house of Lungisani Mncwabe at Hlanzeni. He and a fellow comrade, one Felamandla Mthethwa, proceeded to Mncwabe's house. The applicant was armed with a G3 rifle and Mthethwa had a .765 pistol in his possession.
On entering the house they came across the 1st deceased in a room. Also in the room was Sibusiso Brian Mlaba (hereinafter referred to as "the 2nd deceased"), who was sitting on a bed. The 2nd deceased was 17 or 18 years of age and was the cousin of the applicant.
The applicant told the 1st deceased that he was experiencing his last day, he cocked his rifle and he shot the 1st deceased in the chest and thigh, thereby killing him.
The 2nd deceased jumped up and tried to climb through a window. Felamandla Mthethwa shot him in the back of the head and killed him. They then both fled from the premises. Felamandla Mthethwa told the applicant that he shot the 2nd deceased in order to prevent him from reporting the murder of the 1st deceased to the police. The applicant believed that Mthethwa did the right thing by killing the 2nd deceased.
The evidence of the incident before this Committee differs substantially from that which was led at the applicant's trial. At the trial the said Mthethwa was used as a state witness. In terms of his evidence as well as that of Lungisani Mncwabe, who was an eyewitness, the applicant shot and killed both the deceased persons. There was also no mention made at the trial of the 1st deceased being killed for reason that he was an informer. The applicant denied that he shot any of the deceased persons and stated that it was Mthethwa who shot them.
The applicant testified at this hearing that he did not tell the truth at his trial as he wanted to avoid being convicted. The motive for the killing at the trial is unclear.
The applicant was the only person to testify at the hearing. Felomandla Mthethwa is deceased and Lungisani Mncwabe elected not to testify. In considering the evidence of the applicant we have taken into account the fact that he is not averse to telling untruths when giving evidence under oath and that the version of the killing of the deceased persons was different at the trial.
We, after careful consideration, accept the applicant's explanation that the reason for killing the 1st deceased was because he was an informer. We also accept that during those turbulent and violent times it was the policy of both MK and the ANC SDUs to kill informers.
We are accordingly satisfied that both the applicant and Felomandla Mthethwa went to the Mncwabe house with the common intent of killing the 1st deceased and that the murder of the 1st deceased was an act associated with a political objective committed in the course of the conflicts of the past.
There was, however, no common purpose between the applicant and Felomandla Mthethwa to kill the 2nd deceased. It is clear from the evidence before us that the 2nd deceased was not killed in the so-called crossfire. He, on applicant's version, was intentionally shot and killed by Mthethwa without any forewarning or consultation with the applicant. The mere fact that the applicant agreed with Mthethwa's explanation for killing the 2nd deceased dose not make the applicant a perpetrator or, on his version, responsible for the death of the 2nd deceased, notwithstanding the fact that he was Mthethwa's commander.
The 2nd deceased was an entirely innocent victim. He resided in an ANC area and there is nothing to suggest that he was a political opponent of either applicant or Mthethwa. When the applicant saw that the 1st deceased was in the company of the 2nd deceased he could have taken steps to avoid killing the 1st deceased in the presence of an eyewitness. Even if such steps could not have been taken, the killing of 1st deceased was not so essential as to justify the killing of the 2nd deceased as well.
We are therefore, of the view that it would be incorrect to adopt the approach that the murder of the 2nd deceased was committed with a political objective, that the whole incident was political and that the applicant should accordingly be granted amnesty in respect of the killing of the 2nd deceased.
We are, in the circumstances not satisfied that the murder of the 2nd deceased was an act associated with a political objective in terms of the criteria set out in the provisions of Section 20 of the Promotion of National Unity and Reconciliation Act, no.34 of 1995.
The applicant is therefore GRANTED amnesty in respect of:
1. The murder of Secrete Nkonsenhle Mkhize on 16 March 1994 at or near Hlanyeni in regard to which the applicant was convicted and sentenced to undergo 20 years imprisonment in the Natal Provincial Division of the then Supreme Court; and
2. the unlawful possession of a G3 rifle and ammunition in regard to which the applicant was convicted and sentenced to undergo 5 years imprisonment in the Natal Provincial Division of the then Supreme Court.
The applicant's application for amnesty in respect of the murder of Sibusiso Brian Mlaba in regard to which he was convicted and sentenced to undergo 20 years of imprisonment in the Natal Provincial Division of the then Supreme Court is REFUSED.
We are of the opinion that the immediate family of Secrete Nkonsenhle Mkhize are victims and this matter is referred to the Committee on Reparation and Rehabilitation for consideration in terms of the Act.
Signed at Cape Town this the 9th day of February 2000.
______JUDGE S MILLER
______
J B SIBANYONI
______
MR I LAX AC/2000/017
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.
A M MHLAMBO 1ST APPLICANT
(AM4105/97)
X B TSOTETSI 2ND APPLICANT
(AM2946/96)
M J MAGULA 3RD APPLICANT
(AM2949/96)
H M SIKHAKHANE 4TH APPLICANT
(AM2950/96)
DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No 34 of 1995 ("The Act").
At the commencement of the application, Mr Vassist Sewpal, who appeared on behalf of all the applicants informed the Amnesty Committee that applicant No 4, Mr Hector Magendane Sikhakhane, could not appear before the Committee because, according to his instructions, he is mentally ill and is uncertain when he could recover. Because his absence is due to health reasons, the Committee agreed that Mr Sikhakhane’s application be removed from the roll, without depriving him of his right to pursue his application at a later stage if he should recover from his illness.
Mr Sewpal further informed the Committee that he was instructed by Fano Paatrick Tsotetsi, Xolani Russel Phungala, Thami Thulani Zondi and Bongani Zacharia Gwala, who attended the amnesty hearing, to act on their behalf in applying for amnesty. They were the co-accused together with the four applicants whose names were on the roll. All in all there were eight accused persons at the trial.
Miss Thabile Thabethe, the evidence leader, informed the Committee that Messrs F P Tsotetsi, T T Zondi, X R Phungula and B Z Gwala attended the hearing because they have been given notice in terms of Section 19(4) of the Act as implicated persons.
She further stated that they admitted to her that they never completed the necessary application forms to apply for amnesty. Accordingly the Committee ruled that these persons are not properly before it as applicants.
FACTS IN BRIEF
The three applicants before the Committee, together with five other persons mentioned hereinafter were arraigned before the then Supreme Court at Pietermaritzburg on 27th November 1992 and convicted with the murder of Thembisile Victoria Mthembu, a 20 year old female on 28th September 1991. The co-accused at the trial were Gende Hector Sifiso Sikhakhane, Fano Patrick Tsotetsi, Bongani Zacharia Gwala, Xolani Phungula and Thami Thulani Zondi. Each one of the accused persons was sentenced to ten years imprisonment.
Messrs Mhlambo, X B Tsotetsi, Zondi, Phungula and Magula testified before the committee. Their evidence is to the effect that they are members and supporters of the African National Congress (ANC) and that the deceased was also a member of the ANC. On 28th September 1991 the deceased was seen in the vicinity of the H L and H compound in Greytown. This compound was dominated by and regarded as a "stronghold" of the rival party namely Inkatha Freedom Party (IFP).
Applicant Mhlambo testified and gave the background to the incident and the circumstances which led to the death of the deceased. He told the Committee that on the afternoon of the 28th September 1991 he saw a certain Siphelo Khanyile assaulting the deceased until she admitted that she had dual membership of the ANC and IFP and that she deserved to be punished for what she had done.
Mhlambo testified that the deceased was then taken to the Chairperson of the ANC at Hlalakahle aarea, a certain Mr Mzolo, who is since deceased. During questioning of the deceased at Mzolo’s place, Mr Mzolo suggested that the questioning should be stopped to be continued on the following day. As the people were leaving his house, Mr Mzolo gave a signal by moving his finger across his neck, that the deceased should be killed.
All the applicants participated in carrying out Mr Mzolo’s order to kill the deceased. They ensured everyone contributed in the killing of the deceased by stabbing her with a knife so that "what they started together they should complete together".
Having considered the matter the Committee is of the view that A M Mhlambo, X B Tsotetsi and M J Magula have saatisfied the requirements of the Act and are GRANTED amnesty for the murder on 28th September 1991 of Thembisile Victoria Mthembu at or near Jabula Road, Enhlalakahle Greytown, Umvoti District and the delicts which may flow therefrom.
The next-of-kin of Thembisile Victoria Mthembu are found to be the victims and are accordingly referred to the Reparation and Rehabilitation Committee in terms of Section 22(1) of the Act.
SIGNED AT CAPE TOWN THE 09 DAY OF FEBRUARY 2000.
JUDGE S MILLER
MR J B SIBANYONI
MR I LAX AC/2000/018
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.
LUNGELO LUPUWANA APPLICANT
(AM6371/97)
DECISION
The applicant is seeking amnesty for the abduction and murder of the following persons:
Lindlie Kula,
Nkosinathi Tuku and
Nathan Kota.
The deceased were abducted in East London and subsequently killed near the Kei River Bridge on the 21st of May 1993. For reasons that will emerge later, it is necessary to detail the evidence at inordinate length.
The applicant was a member of the Transkei Defence Force ("TDF") at the time of the occurrence of the incident. He held the position of Sergeant and reported to Captain Mdze who was his senior. He was stationed at Port St Johns Military Base and attached to the Special force Unit. At the time the Transkei territory was still a so-called independent Bantustan under the rule of Major General Holomisa.
It is, further, a matter of public record that relations with the South African regime and the Military Council of Holomisa were not very cordial and the period of his rule saw a number of attempted coups to topple Holomisa. The South African Government, as may be expected, was consistently blamed for the attempts.
It was a part of the applicant’s duty to trace and apprehend those suspected of involvement in such attempts or any subversive activity against the authorities of the "independent" territory.
Initially, Matyolo had also applied for amnesty for his involvement in the abduction and murder of the deceased. At the hearing he suddenly withdrew his application. We also understand that there is a criminal case pending against him in this regard. The applicant was the only person to adduce viva voce evidence in support of his application which is being opposed by the families of the deceased persons, on the ground that the latter were not involved in any political activities against the erstwhile Transkei regime.
On 31 March 1993 the applicant was on duty at Port St Johns when Mdze gave him an instruction to take off his uniform as he was going to drive for him. They were going to travel to Butterworth to visit TDF Military Intelligence offices. En route to Butterworth Mdze told him that they were going there to see Matyolo, which they did. They found Matyolo, Corporal Powa amd two other gentlemen who were unknown to him. The applicant, Mdze, Matyolo and Powa then travelled to East London. On the way Matyolo said they were going to meet Zonwabele Mgudlwa in East London at Amalinda. No mention was made of what the meeting was going to be about and why. The applicant later inferred that both Zonwabele and his brother, Pamapa were working as informers for the TDF Military Intelligence. Zonwabele was not at home when they came and they had to wait for him for quite a while before Papama came, and later Zonwabele.
When Zonwaablee came Matyolo called him aside to speak with him alone and, after the two had so spoken, they came back to rejoin them in the sitting room. Matyolo said they were going to do a "mission" at Wana’s house and that they should wait until it was dark. Wana was to be "taken" (abducted) and taken to Umtata. Wana was suspected of involvement in an attempted overthrow of Holomisa. He was to answer all allegations there.
When it was dark they all, including the Mgudlwa brothers, got into the Nissan Sentra and Zonwabele was now the driver of the vehicle which the applicant had driven all the way from Port St Johns. On the way Zonwabele issued both the applicant and Mdze with 9mm pistols. No verbal instructions were given and the applicant took safety precautions, and tied it to his belt.
Whilst they were still on the way, Zonwabele said they should not worry because Papama got out of the car. He knocked on the door and there was no response. There was nobody there. He walked back to the vehicle and suggested that himself, the applicant, Matyolo and Mdze should enter the house, Zonwabele and Powa were to wait outside. On entering the house Matyolo gave them (the applicant and Mdze) positions where to sit on the look-out. They were waiting for Wana to come. Papama and Matyolo searched the house and found files. He said they were the files they had been looking for. The applicant does not know what they contained.
After a while of waiting there they heard banging of doors of a car outside. Matyolo said they were to be silent. Three gentlemen, who later happened to have been the deceased in this case, entered the house, obviously not knowing that they were inside. On switching the lights on they were shocked by their presence. Papama and Matyolo ordered them to "stand still" and raise their hands. The trio complied. One of them appeared to know Papama as he pleaded with him to spare their lives because they were "innocent".
Whilst this was happening Mdze opened the door and ran away. He did not again join the applicant’s group. The trio said Wana was in Cape Town. Matyolo demanded their car keys and when same was handed over gave it to Papama. The trio were taken outside to their own car, a Volkswagen vehicle. It was now dark and their Nissan Sentra was no longer there. The trio were ordered to get into the boot of the Volkswagen vehicle, which they did. Two of them got into the boot and one sat at the back with the applicant. Matyolo ordered Papama to drive to the house of Zonwabele.
On the way there Matyolo said to the one inside the vehicle if they did not reveal the whereabouts of Wana they would be killed. At Zonwabele’s house Matyolo was the only one to alight from the vehicle and at the gate spoke with the former’s wife. The applicant did not hear what they spoke about. It did not appear to him that Zonwabele was there.
On returning to the vehicle Matyolo commanded Papama to start the car and go. He did not say where they were going to and on the way Papama said there was a problem in that one of the trio knew him. He wanted to know what should be done with them in the light of the circumstances. Matyolo was now getting "aggressive" and his words were being expressed in a tone of an order "because the mission was not successful". During all this time Papama was driving.
The applicant does not know the area but at some point they followed a gravel road into the veld. There were no houses there.
When the vehicle stopped in a semi-dark spot Matyolo grabbed the one who was in the vehicle and ordered him to lie down in front of the vehicle. Papama took the two out of the boot and told them to lie down, next to the first one. The engine of the vehicle and lights were switched off. As they were lying down on their stomachs Matyolo took out his pistol, gave it to Papama and told him to shoot them. Before the shooting the trio said they were just looking after the house whilst Wana was away. The applicant says he heard some shots but does not know how many. He was shocked and afraid. He took a few paces away and got closer to the vehicle. Then he heard Matyole saying, "stop now, give me my weapon". He asked the applicant to where was his weapon, and this he produced. He took it and gave to Papama who again started shooting. After the second series of shots Matyolo said they could return to the car. They had "finished the mission".
They all got into the vehicle and went back to Zonwagele’s house where they found him with Mdze and Powa. Matyolo told them that the trio had been killed. Mdze wanted to know who had killed them and Papama replied that he had, because they knew him.
After some time they left, returning to the Transkei. The applicant was ordered to follow the Nissan Sentra vehicle with the Volkswagen vehicle, which on the advice of Zonwabele, was to be destroyed to divert any police suspicions or traces of the crime. This they did near Komga on the way to the Kei River Bridge.
Zonwabele who was represented by Mr Nyoka, denied all involvement in the incident but chose not to testify. In particular, he denied being an informer. We do not deem it necessary to make a finding on the issue. It is not necessary to recall the evidence but it is apparent that not only was the applicant carrying out orders from his superiors, but he also played a singularly minimal role in the incident. The least that can be said of him is that he participated in the abduction of the deceased and was present when it was conspired to abduct Wana. That would constitute an attempted abduction. There is no evidence that he associated himself with the murder of the deceased but after the murders, and in spite of his knowledge, he did not reveal who killed the deceased. This behaviour was to be expected of him, given the nature and circumstances of the clandestine operation. We however, do not equivocally say that the killing of the three young men was totally unjustified in the circumstances. It was totally unrelated to the objective of maintaining the rule of the military council in the Transkei.
In the result amnesty is GRANTED to the applicant for the following offences:
The conspiracy and attempted abduction of Wana;
The abduction of Kula; Tuku and Kota;
Arson in respect of the motor vehicle of the deceased and
For any offence or delict arising out of his
participation in the incident.
Amnesty CANNOT BE GRANTED for the murder of the deceased. The evidence does not suggest that he participated or associated himself in any way with the murder of the three.
The next-of-kin of the deceased are referred to the Committee on Reparation and Rehabilitation in terms of the Act.
Signed at Cape Town this 17th day of February 2000.
ACTING JUDGE D POTGIETER
DR W ME TSOTSI
ADV NTSKI SANDI AC/2000/019
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.
JOHN ITUMELENG DUBE FIRST APPLICANT
(AM 5310/97)
SIPHO HUMPHREY TSHABALALA SECOND APPLICANT
(AM 5312/97)
CLIVE MAHLAULA MAKHUBU THIRD APPLICANT
(AM 5311/97)
PRECIOUS WISEMAN ZUNGU FOURTH APPLICANT
(AM 5309/96)
DECISION
All the applications in this matter relate to the murder of Sicelo Dlomo, a student activist, on 24 January 1988 at Emndeni in Soweto. The applicants were members of Umkhonto weSizwe (MK), the then military wing of the African National Congress (ANC) when the events in question occurred. The deceased was killed because it was suspected that he was a police informer who spied on them and relayed information to the police, whilst they were all, including the deceased, members of an underground MK unit. Dube who had received military training under the ANC acted as the Commander of the unit. The crisp question here is whether the applicants bona fide believed that the deceased was a police informer, and not whether the deceased was in fact such an informer. The applicants say the action was necessary to protect MK underground activists and its structures. Dube, who shot and killed the deceased, says he had no order from his superiors but acted on his own initiative. We commence by sketching out the background of the deceased.
The deceased was an 18 year-old youth whose involvement in the activities of the Soweto Students Congress (SSC) and other organisations attracted the attention and interest of members of the South African Security Police (SAP). On more than one occasion he was detained and maltreated by the Security Police. He also worked as a voluntary worker for the Detainees’ Parents Support Committee (DPSC). In 1986 he appeared on an overseas television programme on the detention and treatment of children under the State of Emergency.
His murder caused a widespread outcry and it was generally suspected that it was the work of members of the Security Police. No arrests were made for his murder and the applicants, some of whom were well-known to his family, came out on their own and confessed that they murdered the deceased. There can be no doubt that the deceased was an activist youth of considerable profile and repute due to his role in the affairs of the abovementioned organisations. We now proceed to deal with the evidence. We should also mention that the applications are being strenuously opposed by the family of the deceased.
Dube, who is now a Captain in the South African National Defence Force (SANDF), came into the country between 1986 and 1987, having been deployed by the ANC to mobilise its support by recruiting and training supporters. He set up several underground cells in Soweto and one of the members he recruited was the deceased, who was introduced to him by Tshabalala who knew him from SSC circles. Makhubu had also recommended him. They all received some military training for protection and securing of the cell. At the beginning all went very well and he had a good relationship with the deceased. At a later stage, he as commander of several units, had many tasks to perform. These necessitated that he went from one place to another. On many of these occasions he would find the deceased following him. At first he met him at Diepkloof and he did not ask him what he was doing there, and the second time was at Maponya. When he asked him what he was doing there he said he was just moving around. He reported this to his co-applicants. The deceased would also try to hide himself when he saw him. Matters reached a point of culmination when the deceased was arrested and released on the same day although he had given him a handgrenade and a Makarov pistol. He found it very surprising that the deceased could be released so soon, because at that time detainees would generally be held for long periods of detention, more so when found in possession of arms of war. He believed that a detainee would only have been released if he had agreed to be a police informer and work for the police against his (former) comrades. He concluded that the deceased must have sold out.
After his release the deceased did not come to report to their cell what had happened whilst in detention. Instead, he disappeared for a long time without making any contact with them. Dube says he asked his co-applicants to tell him that he urgently wanted to see him. It was against security rules for a member to disappear without telling the others where he was going and why. His disappearance was a matter of concern to all the applicants. He resurfaced after plus-minus three months.
On a certain day Dube was visiting his co-applicants at Makhubu’s home. It was late in the afternoon when the deceased came. Dube says he was shocked and afraid to see him there. They spoke with him outside. Before they spoke Dube sent Makhubu to go and telephone other members of the cell, namely Tshabalala and Zungu. He remained with the deceased. Whilst questioning him as to where he had been all the time, he saw some object bulging out of his pocket. He wanted to know from him what it was. The deceased said it was nothing. Dube quickly took it out and noticed that it looked like a walkie-talkie type of device. He says he then threw it to the ground in order to destroy it, as he was concerned that his conversation with the deceased was being transmitted to the Security Police by the device. When Makhubu came out of the house form where he had telephoned the others, he showed him the device.
Dube decided that they should immediately move away from Makhubu’s house as it was no longer safe there. He also came to the conclusion that the deceased should be killed, because he was dangerous. The deceased had allegedly admitted to him that the device belonged to the police and that they had recruited him. He also confirmed that the weapons he had been given had been taken by the police. Uppermost in his mind at that stage was the security of the people he was working with underground, and the ANC covert operations at large He personally also had to be very careful about his own security to avoid police arrest. He had no time to contact his superiors in the MK because he was confronted with an emergency situation. In general he had authority to use his own discretion and take decisions when facing situations which threatened the entire network of the ANC. He instructed Makhubu to go and fetch the two others and, meanwhile, he proceeded with the deceased to a nearby school. The deceased did not resist. He had already told Makhubu where they were going to. He had also told Makhubu that the deceased would have to be killed because he was a police informer. When Makhubu, Tshabalala and Zungu joined them at the school, Dube told the deceased that they should leave the school and move away from the residential area. At a certain point he told the deceased to sit down, which he did. He was not aware that he was going to be killed. Dube instructed Makhubu to shoot the deceased, which he did, using his own firearm. The deceased died instantly. Dube says Tshabalala and Zungu look very surprised at what had happened but when he explained to them, they accepted it. He reminded them that the deceased had initially disappeared and that he found a police device in his possession. He told them that the incident was kept secret. The elimination took place at about 22h000. After several months he gave a report to his superiors when in Lusaka.
Under cross-examination Dube was asked why he did not kill the deceased himself. He said it was because Makhubu was the most senior member of the unit, and also acted as Commander in his absence. It was also put to Dube and his co-applicants that the deceased had a certain amount of money in his possession. This they all denied and said no money was found in his possession and that he was not killed for money.
Tshabalala, Makhubu and Zungu testified and their evidence generally coincided with Dube’s testimony. Although there were some discrepancies, these are not of such a nature that they amount to material contradictions. They say they agreed with Dube that the killing of the deceased was the right thing to do in the circumstances and associated themselves with it. Under cross-examination it was put to Dube that on a certain day the deceased was arrested on his way to school. The police had pressurised the deceased to work as an informer, by assaulting and kicking him. The deceased, to stop the assaults, agreed to be an informer, but was not going to work as such. He only wanted to be released. On his release he went to see his attorney to report the entire incident with the view to instituting a civil claim. He went to stay with one Joe Thlwaile at Hillbrow as he was afraid of the police arresting and detaining him gain. Dube replied that he had no knowledge of the said incident.
Thlwaile later testified and confirmed that the deceased had spent some time at his place. He said at the time he was a DPSC employee and an underground MK operative. He now works for the Military Intelligence unit of the SANDF. Although he had weapons at his place, and this was known to the deceased, his place has never been raided by the police. Again Dube replied that he knew nothing about that and he did not even know Thlwaile for that matter. Thlwaile further testified that on the last day he saw the deceased he had a certain amount of money with him which he was to take to detainees at Baragwanath Hospital. There is no certainty as to how much exactly it was. Mr Richard for the family of the deceased put it as R1000 and Tshabalala said he was told by the deceased that he had a sum of R830 with him. He, however, did not see the money. Earlier the deceased had come to his house. He had a device looking like a "cassette" or "radio" on his waist but he does not know if it is the same as the one that was destroyed by Dube, as he never saw that one.
One of the witnesses who testified, having been called by the family of the deceased, was one Ntombi Jane Mosikere. She worked for DPSC and knew the deceased. Her duties entailed taking statements from ex-detainees and referring these with complaints to doctors and lawyers for assistance. She had dealt with the deceased and his mother during the times of his detention including the last detention when he was released in December 1987. She says it was a common occurrence in those days for the police to pressurise political detainees to agree to be informers before they could be released. She would refer such people to lawyers for assistance and advice. The deceased also reported that under pressure he had agreed to work for the police, but said he was not going to do so and had agreed only to secure his release. It was usually accepted, after debriefing, that such people were not informers at all. Debriefing would reveal that they had no intention of complying with their undertaking to the police and a file would be opened. The deceased was referred to attorney Mr Ayob and a file was kept on the matter. She got to know the deceased very well and had a close relationship with him and his mother who used to tell her about their financial problems. At some stage she even offered the deceased a hiding place, which he refused, as he wanted to stay closer to his grandmother. Her evidence was further that in late 1987 he was arrested by police at DPSC offices and was charged, convicted, and sentenced for unlawful possession of an unlicensed firearm. Then in January 1988 he was arrested at DPSC offices by police who came and identified him as the person who had appeared on a television programme. He was released on about the second day. The last time she spoke with him was on a Saturday in January 1988 when he telephoned her at home and said he wanted to speak with her "urgently" about "something confidential". He wanted to meet her at the DPSC offices. She suggested to him that they would have to meet on Monday as she could not make it that day. The deceased reluctantly agreed and that was the last time she heard from him. He did not say what he wanted to speak with her about. The witness confirms the evidence about "something like a radio" that the deceased used to walk around with on his waist. It had never been suspected to be anything sinister. The deceased used to listen to it openly at the DPSC offices. Further, she has never thought of him as an informer and no one at the DPSC offices or anywhere for that matter, ever thought so.
After considering all evidence we hasten to say that there is no evidence that the deceased was an informer and worked for the Security Police. There is also no evidence that the applicants acted for personal gain or out of malice, ill-will or spite. It would seem that Dube was understandably quite nervous and sensitive about the security of the ANC underground cells and his own safety. When he took the view that the deceased was an informer his co-applicants seem to have simply followed suit without asking questions. On the information available to them which they believed to be reliable we can accept that they came to the decision honestly and accordingly believed they had to take action to protect themselves, the MK and ANC from further police investigations and action. For these reasons it is our view that the offence committed is associated with a political objective. They have also given a full disclosure of all the relevant facts. The evidence also does not suggest that this was an act of robbery.
Amnesty is therefore GRANTED to all the applicants for the murder of Sicelo Dlomo and for any other offences or delicts arising from the murder.
Further, it is recommended to the Reparation and Rehabilitation Committee of the TRC that the next of kin of the deceased be declared victims in terms of the Act.
Signed at Cape Town on this 21st day of February 2000.
______JUDGE A WILSON
______DR W M TSOTSI
______ADV N SANDI AC/2000/020
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.
______
ROCKLYN MARK WILLIAMS APPLICANT
(AM7306/97)
______
DECISION
______
The applicant, a member of the ANC and Umkhonto weSizwe served as a Communication Officer in the SADF from 1978 to 1986. Over these years he was spying for and transferring information of military value to the ANC.
In 1986 he was arrested and charged in the Johannesburg Magistrate’s Court with "furthering the aims of the ANC". He was sentenced to 6 years imprisonment and released on bail pending and appeal. He skipped bail and left the country illegally on 31st May 1987.
The applicant returned in 1988 and planted a limpet mine and two handgrenades in the garden outside Anthea’s Club, Holiday Inn, Pietersburg. One of the handgrenades was detonated and some damage amounting to R700.00 was caused to the hotel building. No-one was injured in the blast.
According to the applicant the explosion was intended to have a "psychological effect, like (armed propaganda)."
The applicant applies for amnesty in respect of the above. After having considered the Committee the above facts and circumstances the Committee is satisfied that the applicant complies with all the requirements for amnesty and accordingly the applicant is GRANTED amnesty for:-
1. 1 Furthering the aims of the ANC during the period 1978 to 1986.
2. Leaving the Republic of South Africa illegally on or about 31st May 1987.
3. Entering the Republic of South Africa illegally in 1988 without being in possession of the necessary travel documents.
4. Being in unlawful possession of ammunition and explosives on or about 27 March 1988 to wit one limpet mine and two handgrenades.
5. Planting a limpet mine and two handgrenades behind Anthea’s Club in the Pietersburg Holiday Inn on or about 27 March 1988.
SIGNED at CAPE TOWN this the 21st day of FEBRUARY 2000.
______
______
______AC/2000/021
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.
______
ZOYISILE GODFREY QHAYI APPLICANT
(AM2250/96)
DECISION
______
The applicant applies for amnesty for public violence on the 20th April 1993 in which incident a delivery van belonging to Dan Hands Furniture Store was set alight. This was done as a spontaneous reaction to the killing of Chris Hani. The applicant was charged, convicted and sentenced to 4 years imprisonment of which 2 years were suspended, on 30th September 1994 in Victoria West under case number 23/94.
20(2) The Committee is satisfied that the incident took place within the context of the conflicts of the past, that the act was associated with a political objective as envisaged in Section 20(2) read with Section 20(3) of the Act and that the applicant has made a full disclosure and the applicant is accordingly GRANTED amnesty.
The Committee is further of the opinion that Thandiwe Rina Wessels of 64 Sabelo Location, Richmond, is a victim as envisaged in the Act and her name is being referred to the Rehabilitation and Reparation Committee for their consideration.
SIGNED at CAPE TOWN this the 21st day of FEBRUARY 2000.
______
______
AC/2000/022
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.
______
GEBHU FANYANA NGUBANE APPLICANT
(AM3272/96)
DECISION
______
The applicant applies for amnesty in respect of the murder of Manafuthi Mbokazi near the Power School at Umgababa on 1st January 1982.
According to the applicant, the deceased Mfanafuthi Mbokazi, with six other IFP supporters attacked the house where he and Isaac Msomi were staying on 1st January 1992. The house belonged to a Mr Myeni who had fled the area because he feared for his life during the ongoing fighting between members of the ANC and the IFP. He said he knew the attackers and they were, according to him, former ANC members who defected from the party and later joined the IFP. He knew the deceased as a person who had been involved in killing ANC members since 1989. It is common cause that the deceased was 21 years old when he died in 1992.
According to the applicant the seven attackers were armed with knives, assegais and five home-made guns. He and his two companions (apart from the two looking after the house a certain Kwazi Mbambo was also with them) fled and were pursued by the deceased and his companions who were firing shots at them. Six of the pursuers abandoned the pursuit but the deceased continued chasing him. He fell and the deceased fell on him and tried to kill him. He managed to take the deceased’s knife and with the assistance of Msomi freed himself and stabbed the deceased with the deceased’s own knife and with the assistance of Msomi freed himself and stabbed the deceased with the deceased’s own knife in self-defence.
The story differs vastly from the evidence of Alzina Luthuli, the girlfriend of the deceased and mother of his child who was one year old at the time. She gave evidence that she and the deceased were on their way to the market where she used to sell articles. The deceased had spent the previous night (Old Years Eve) with her at her parents’ home. On their way to the market they met the applicant, Leehe Msomi and KwaziMbambo. Two of them passed the couple while the third one remained behind.. The applicant referred to the deceased in a derogatory manner as being a member of Inkatha. He used the word "Klova". The deceased turned around to face the applicant and was then attacked by the applicant who stabbed the deceased with a knife while he was held by Msomi. She did not notice whether Kwazi Mbambo assisted. On seeing the first stab directed at the throat of the deceased she fled towards the market place where she expected to meet his sister. While looking for her sister it crossed her mind to phone the police. She noticed a long queue waiting at the phone booth and on not finding her sister ran back to the road to try to find a taxi to take her to the deceased’s family to inform them about the attack. When she reached the road she saw a bakkie coming and noticed that the deceased and his father were on the bakkie. The bakkie was driven by Mr Mbambo Snr, the father of one of the men who accompanied the applicant. She got into the front of the bakkie with the driver and they rushed to the hospital where the deceased died shortly after arrival. She also testified that she is convinced that the deceased did not carry a knife that morning. She would have known if he did because he spent the previous night with her. She also denied that he had a gun, She testified that the deceased was not involved in politics but conceded that he might have been perceived to be an IFP member because he stayed in a predominantly IFP area.
Alzina Luthuli’s evidence was in certain respects corroborated by Frederick Mbokazi, an elder brother of the deceased.
The applicant was found guilty of murder and sentenced to six years imprisonment. He was recently released from prison. His co-perpetrators did not apply for amnesty.
The committee, after considering all the evidence is not satisfied that the applicant made full disclosure of all the relevant facts. He did not satisfy the Committee that there was an attack by seven IFP members or supporters at all, or that he used the deceased’s knife to stab the deceased or that the attack took place as described by him. His evidence contradicted his previous statements. Alzina Luthuli on the other hand impressed us as a truthful witness and we have no hesitation in accepting her evidence. We do not find it necessary to analyse the evidence of Frederich Mbokazi. Even if we would ignore his evidence, it would not alter our decision.
In the result the application was REFUSED.
The Committee, in terms of Section 22 of the Act 1995, however, is still of the opinion that the deceased’s child and Alzina Luthuli, the mother of this child and the girlfriend of the deceased should be considered victims in terms of the Act.
SIGNED at CAPE TOWN this the 22 day of FEBRUARY 2000.
______
WILSON J:
______
DE JAGER AJ:
______
SIBANYONI J B:
AC/2000/023
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.
MANGALISO JAFTA APPLICANT
(AM 5789/97)
DECISION
The applicant joined Umkhonto weSizwe in 1986. He then illegally left South Africa to undergo training in Angola. Thereafter, in 1989, he returned to South Africa and trained MK members in many places in the Eastern Cape and Natal regions. The trainees were trained in how to conduct ambush, sabotage and combat work which also involved secrecy and information gathering.
After having considered the application and all relevant documentation the Committee is satisfied that the applicant complies with all the requirements for amnesty.
Accordingly amnesty is GRANTED to the applicant for all contraventions of the Internal Security Act, 74 of 1982 as amended which may be directly connected to the above acts.
Signed at Cape Town on this the 23rd day of February 2000.
______
______
______AC/2000/024
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.
______
ANANANIA BOKSA MASIPHA APPLICANT
(AM 4275/96)
______
DECISION
______
Amnesty is hereby GRANTED to the abovenamed applicant in respect of the offence of public violence committed at or near Mookgophong, Naboomspruit, on or about 14 April 1993.
Dated at Cape Town this 1st day of March 2000.
______
______
______AC/2000/025
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.
PATRICIA ELIZABETH HANEKOM APPLICANT
(AM 8049/97)
DECISION
The applicant is a member of the African National Congress, the ANC, and the South African Communist Party.
During or about December 1979 she took part in a peaceful demonstration outside John Vorster Police station in Johannesburg. The demonstration, which was organised by a church, was a protest against the detention of political opponents of the government. The applicant was arrested and charge din the Magistrate's Court with attending an illegal gathering. She pleaded guilty to the charge and was cautioned and discharged.
During 1983 the applicant received classified information from one Roland Hunter, a national serviceman who was attached to the Directorate of Special Tasks, which was a unit of Chief Staff Intelligence of the South African Defence Force, the SADF. She passed the classified information on to the ANC. The information related to the support that was being given by the SADF to Renamo. The applicant was arrested and was also found to be in unlawful possession of certain publications and tape recordings of political speeches and interviews. She was charged in the Supreme Court, Pretoria, with a number of charges, including high treason. She pleaded guilty to the charges relating to the unlawful possession of publications and tape recordings and was convicted only in respect of such charges.
During the period 1988 to 1990 the applicant, while in Zimbabwe, provided military hardware and material, through the use of dead letter boxes, to units of ANC members.
We are satisfied that at all times in regard to the matters above the applicant acted with a political objective as contemplated by the provisions of the Promotion of National Unity and Reconciliation Act, no. 34 of 1995, "the Act".
We are also satisfied that the applicant has made a full disclosure and that her application satisfies the requirements of the Act.
In the circumstances, the applicant is GRANTED amnesty in respect of:
1. Attending an illegal gathering in Johannesburg during or about December 1979 and in respect of which the applicant was cautioned and discharged in the Magistrate's Court, Johannesburg;
2. Unlawfully receiving classified information during 1983 and passing the same on to the ANC;
3. The unlawful reproduction of speeches, utterances or statements in contravention of Section 56(1)(p) of the Internal Security Act, no.74 of 1982;
4. The unlawful possession of publications in contravention of Section 8(1)(d) of the Publications Act, no. 42 of 1974;
5. The provision of military hardware and material to members of ANC units during the period 1988 to 1990.
Dated at Cape Town this 1st day of March 2000.
Signed:
______
______
______AC/2000/026
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.
DEREK ANDRE HANEKOM APPLICANT
(AM 8032/97)
DECISION
The applicant, during 1979, was a political activist opposed to the policies of the government. Towards the end of that year he took part in a non-violent demonstration outside John Vorster Police station. The demonstration had been organised by a church and was a protest against the detention of political opponents of the government.
The applicant was arrested and charged in the Magistrate's Court, Johannesburg, with attending an illegal gathering. He pleaded guilty to the charge and was cautioned and discharged.
The applicant formally joined the African National Congress, the ANC, during 1980. He became an active member thereof.
During 1983 the applicant received classified information from one, Roland Hunter, a national serviceman who was attached to the Directorate of Special Tasks, which was a unit of Chief Staff Intelligence of the South African Defence Force, the SADF. The classified information received by the applicant was passed over by him to the ANC. Such information related to the training given by the SADF to Renamo soldiers in South African bases and the support being given by the SADF to Renamo in Mozambique.
The applicant was arrested and was also found to be in the unlawful possession of certain publications. He was charged in the Supreme Court, Pretoria, with various charges, including high treason. He pleaded guilty to two charges relating to the unlawful possession of publications and was convicted only in respect of such charges.
We are satisfied that the offences committed by the applicant were acts associated with a political objective, committed in the course of the conflicts of the past, that he has made a full disclosure of all relevant facts and that the application complies with the requirements of the Promotion of National Unity and Reconciliation Act, no.34 of 1995.
In the circumstances, the applicant is GRANTED amnesty in respect of:
1. Attending an illegal gathering in Johannesburg during or about December 1979, and in respect of which the applicant was cautioned and discharged in the Magistrate's Court, Johannesburg;
2. Unlawfully receiving classified information during 1983 and passing the same on to the ANC;
3. The unlawful possession of publications in terms of Section 56(1)(c) of the Internal Security Act, no.74 of 1982; and
4. The unlawful possession of publications in terms of Section 8(1)(d) of the Publications Act, no.42 of 1974.
Dated at Cape Town this 1st day of March 2000.
______
______AC/2000/027
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.
VUSIMUZI ROBERT NGCOBO APPLICANT
(AM 5628/97)
DECISION
The applicant seeks amnesty in respect of the following offences:
a. the murder of Bongani Eric Kunene at KwaMashu in the district of Inanda, KwaZulu Natal on 31st October 1993;
b. robbery with aggravating circumstances, as defined in section 1(1)(b) of Act 51 of 1997, for the assault on the said Bongani Eric Kunene and the removal, with force and violence, from the said person of one 9mm Luger pistol.
He was sentenced to 12 years imprisonment for murder and three years for robbery.
The applicant commenced his evidence before the Amnesty Committee by stating that when he deposed to the affidavit which was submitted in support of his application, he did not include everything which occurred due to the fear he had for his life and that of his family. He indicated that he would disclose everything before the Committee.
He testified that he is a member of the ANC, having joined it when it was still unbanned and it operated as the United Democratic Front. The UDF.
On 27 May 1993, he formally applied for membership and was issued with card No. 69249, which he produced before the Committee. He received military training in KwaMashu under the local commander of MK, namely Mliko Sakharumbe, "Mliko". He served as a marshall during campaigns such as rallies and protest marches.
The applicant was trained to defend members of his organisation, the ANC, and the community against the IFP and Zulu Police, ZP. Their commander, Mliko, was killed by the ZP during October 1993. Eric Kunene, the deceased, a fellow ANC member, was a police informer, impimpi, and he gave the ZP's information about Mliko. On a previous occasion Mr Kunene's house was burned for betraying his fellow comrades.
An instruction was issued by his then commander, Nduna Maphumulo, ordering that Mr Kunene should be killed for spying on fellow ANC members.
The team which went out on the mission to kill Mr Kunene were, Nduna Maphumulo; Mbomseni Gimba; Mtu and the applicant. The applicant was instructed that he should make sure that he also shoots Mr Kunene as part of his learning experience. This was the applicant's first such mission.
Mtu and Gimba proceeded first to Mr Kunene's house. In order to check whether he was present and armed a young lady, Nomthandazo, was used.
They pretended as if they were assaulting her by kicking her and she pretended to fall down. She ran into the premises of Mr Kunene's house asking for help. Mr Kunene came out of his house, produced his firearm and ordered the "assailants" away from his house. As Mr Kunene and his wife were leaving their home by car, he was attacked by the applicant, Mboniseni and Nduna. They shot and killed him and took his firearm from him.
Mrs Kunene, the wife of the deceased, was called to give evidence. Her version as to how the deceased was attacked, shot and killed differs from the applicant's version.
Among others she testified that the girl arrived at her house while being chased by one person whom she identified as the applicant; that her husband was attacked after they had left their home and were parked in the street.
However, she confirms that their house was burned and that there was a rumour that her husband was a police informer. She also stated that she was terrified and shocked by the attack. She believed that during the attack she lost consciousness, blacked out, for a short while and regained consciousness later.
The discrepancies between the applicant's evidence and that of Mrs Kunene can be ascribed to the fact that the applicant was inexperienced in an operation of such a nature and Mrs Kunene was extremely terrified and shocked when her husband was shot and killed in her presence.
The applicant has made a full disclosure of all the relevant facts as requested by Section 20(1) of the Act.
On consideration of all the evidence placed before us, we have come to the conclusion that the applicant be GRANTED amnesty for the murder of Bongani Eric Kunene and robbery of his firearm on 31 October 1993 at KwaMashu, as well as illegal possession of firearm and ammunition and any offence or delict arising from the said incident.
Signed at Cape Town on this 2nd day of March 2000.
Judge A Wilson ______
AJ C de Jager ______
Mr J Sibanyoni ______AC/2000/028
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.
JANET YETTA LOVE APPLICANT
(AM 6652/97)
DECISION
The applicant applies for amnesty in respect of the role she played in Operation Vula and in the establishment of or assistance rendered to Self-Defence Units.
The only specific offence referred to in her application relates to her being involved in the transfer of arms that were under the general control of Operation Vula to dead letter boxes, DLBs, in some of the areas which were worst hit by political violence including the Vaal Triangle and the Eastern Cape.
We are satisfied that the applicant acted with a political objective when transferring such arms and are of the view that her application satisfies the requirements set out in the Promotion of National Unity and Reconciliation Act, no. 34 of 1995.
The applicant is accordingly GRANTED amnesty in respect of the unlawful possession and/or distribution of arms which were under the control of Operation Vula to DLBs in various areas including the Vaal Triangle and the Eastern Cape.
Dated at Cape Town this 2nd day of March 2000.
______
______
______AC/2000/029
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.
ROLAND MARK HUNTER APPLICANT
(AM 8048/97)
DECISION
During the period 1982 to 1983 the applicant was a national serviceman in the South African Defence Force (the SADF). He was attached to the Directorate of Special Tasks (the DST) which was a unit of Chief Staff Intelligence.
During 1982 an arrangement was made for the applicant to meet two members of the ANC, namely Mr Derek Hanekom and Mrs Patricia Hanekom. The applicant met them on their farm in the Magaliesburg area, got to know them and agreed with them that he would supply them with classified information that he had access to at the DST and that they would then supply the ANC with such information.
Thereafter, during 1983, the applicant, on various occasions, passed on classified information to the Hanekoms. He also supplied classified information to other ANC members known to him only by their code names "Jane:, "James" and "Jeffrey".
The classified information supplied by the applicant to the aforesaid members of the ANC related in general to the support that was being given by the SADF to Renamo. The applicant states that his intention in passing the information on was that it be used to undermine the SADF operations in support of Renamo and other rebel groups operating in frontline countries and thereby weaken the apartheid state and strengthen the forces of liberation.
The applicant was arrested towards the end of 1983. He was charged in the Supreme Court, Pretoria, with a number of offences, including treason. He pleaded guilty to the offence of improper disclosure of information and was convicted only in respect of such offence. He was sentenced to undergo five years imprisonment.
We are satisfied that the offence to which this application relates was an act associated with a political objective committed in the course of the conflicts of the past.
We are also satisfied that the applicant has made a full disclosure of all relevant facts, and that his application complies with the requirements of the Promotion of National Unity and Reconciliation Act, no.34 of 1995.
The applicant is accordingly GRANTED amnesty in respect of the improper disclosure of information in contravention of Section 118(4) of the Defence Act, no.44 of 1957, in respect of which the applicant was convicted in the Supreme Court, Pretoria, and was, on the 26th of September 1984, sentenced to five years imprisonment.
Dated at Cape Town this 2nd day of March 2000.
______
______
______AC/2000/030
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.
TJAART VAN DER WALT FOURIE FIRST APPLICANT
(AM 3771/96)
JOHANNES HENDRIK CLOETE SECOND APPLICANT
(AM 3770/96)
DECISION
On 28 January 1991 at Warwick Avenue near Berea Railway police station in Durban an MK cadre, one Mthunzi Njakazi was killed following a shooting incident in which two askaris were involved.
The applicants, Fourie and Cloete, both Security Police officers of Malvern Durban at the time, were requested by Colonel Andy Taylor, now deceased, to assist the two askaris.
The applicants proceeded to the scene and in a bid to assist them in subsequent proceedings handed the askaris a handgrenade which was planted at the scene.
Consequent to this it was alleged at the inquest that the MK cadre shot at the scene, was in possession of an F1 handgrenade, being in fact the one brought to the scene by the applicants. As a result of this constructed version it was found at the inquest proceedings that no one was liable to criminal prosecution for the death of Mthunzi Njakazi.
After having considered the above facts and circumstances and all the relevant applications and documentation, the Committee is satisfied that the applicants comply with all the requirements for amnesty as set out in the Promotion of National Unity and Reconciliation act, 34 of 1995 as amended.
Accordingly -
1. Tjaart van der Walt Fourie is GRANTED amnesty for all offences directly connected to or flowing from the shooting incident which resulted in the death of Mthunzi Jakazi which took place on 28 January 1991 at or near Warwick Avenue Durban.
2. Johannes Hendrik Cloete is GRANTED amnesty for all offences directly connected to or flowing from the shooting incident which resulted in the death of Mthunzi Njakazi which took place on 28 January 1991 at or near Warwick Avenue, Durban.
Dated this 3rd day of March 2000.
______
______
______AC/2000/031
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.
KANI IKANENG NAANE APPLICANT
(AM 0110/96)
DECISION
The applicant applies for amnesty in respect of his conviction in the Wynberg Regional Court for escaping from custody and theft. He was sentenced to four years' imprisonment, portions of which were suspended on the usual conditions.
At the time of the commission of the offences the applicant was a serving prisoner and member of the Azanian People's Organisation, AZAPO. He had been convicted of a number of
`politically related offences. He had applied for indemnity pursuant to the legislation pertaining at that time. While awaiting a decision in his application others who had applied with him were granted indemnity. He then decided to escape. To this end he and other prisoners overpowered warders and stole firearms, keys and a vehicle. They were re- arrested on that same day.
While awaiting trial on the new charges relating to the escape, his application for indemnity was granted. He argues that his conviction for escaping and theft are inextricably linked to his being in custody on politically related offences for which he has already received indemnity. We agree with his submission.
In the circumstances the applicant has satisfied the requirements of the Act and is GRANTED amnesty in respect of his convictions and sentences as set out above.
Signed at Cape Town on this the 3rd day of March 2000.
______
______
______AC/2000/032
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.
BOOSYSEN MFANYANA MASHEGO APPLICANT
(AM 0066/96)
DECISION
The applicant applies for amnesty in respect of his conviction in the Protea Regional Court in Soweto on three counts of being in possession of arms and ammunition. He was sentenced to three years imprisonment portions of which were suspended on the usual conditions.
The accused appealed against the sentence and it was reduced by the then Supreme Court on 5 November 1992 as follows:
Count 1: 36 months of imprisonment of which 14 months is suspended for five years on condition that the accused is not found guilty of a contravention of sections 2, 32 or 36 of Act 75 of 1969 which was committed during the period of suspension.
Count 2 & 3: 18 months imprisonment of which 15 months is ;suspended for five years on condition that the accused is not found guilty of a contravention of section 2, 32 or 36 of act 75 of 1969 which was committed during the period of suspension.
At the time of the commission of the offences, the applicant was a community leader and member of both the then recently unbanned ANC and SACP in Tladi squatter camp in Soweto. He describes a situation where the camp's occupants became the targets of increasing attacks on them by residents of the neighbouring IFP aligned hostel.
He indicates that despite repeated requests the police refused to assist the community. He says that the community decided to collect funds to obtain firearms and ammunition for the purpose of warding off the attacks. As one of the leaders in the community he assumed responsibility for the safekeeping of the weapons and ammunition. He says that one evening after such an attack he found an unexploded handgrenade left behind by the attackers. He decided to keep it for defensive purposes rather than hand it in to the police.
The applicant says that on 21 April 1991, the police raided his area and found him in possession of one M26 handgrenade; one 12 gauge home-made firearm; seven 12 gauge, on 7.62mm and two unknown calibre rounds of ammunition. These items formed the subject of the three counts for which he was charged and convicted.
It is clear from the documentation before us that the applicant was a leader of, and acted in support of his community.
It is further evident that he was a member of, and acted on behalf of a known liberation movement.
It is further clear that he pleaded guilty to the charges and that he did not act out of personal or other ulterior motives and that his application complies with the terms of the Act.
In the circumstances the applicant is GRANTED amnesty in respect of his convictions and sentences as set out above. Signed at Cape Town on this 3rd day of March 2000.
______
______
______AC/2000/033
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.
MHLESHUZWA JOSEPH NGEMA APPLICANT
(AM 8078/97)
DECISION
The applicant applies for amnesty in respect of the following offences:-
1. The murder of Simiso Edmund Miya on 29 June 1993 at Umgababa in the district of Umbumbulu.
2. The murder of Francis Bheki Hlatshwayo on the same day and at the same place.
3. The attempted murders of five other people namely; Sibusiso Luthuli; Sipho Sikhumbuso Luthuli, Mzo Mbonambi, Chunky Msiya and Ziswe Mbonambi on the same occasion.
4. The murder of Zwelethemba Wesley Hlongwane on 1 July 1993 also at Umgababa.
5. The assault on Sandile Nkomo on 1 July 1993 at the same place.
The Committee will refer to the offences committed on 29 June 1993 as the first incident and to those committed on 1 July 1993 as the second incident.
The applicant was found guilty of culpable homicide on the two murder charges and of assault with intent to inflict grievous bodily harm on crimes relating to the first incident. He was sentenced to five years imprisonment on each cont of culpable homicide and one year imprisonment on each count of assault. All the sentences had to run concurrently so that he had to serve an effective term of five years imprisonment for crimes related to 29 June 1993.
In the particulars about the crimes contained in his application he stated:-
"All in all they were ten whom we found and beat. Then five were injured. Three died and two ran away".
The applicant stated that the reasons for the attack on the victims were "they were rapists, robbers and killers". He further stated that he is serving a sentence of 13 years imprisonment.
The confusion about the number of victims and the period of imprisonment was cleared up at the hearing. The applicant was in fact sentenced to eight years imprisonment on two other charges. Those charges related to the killing of Zwelethemba Wesley Hlongwane (known as Maphe) and the assault on Sandile Nkomo, which will be referred to as the second incident.
According to the applicant he was the chief Marshall of the area at that stage. Previously he was a member of the UDF but joined the ANC after its unbanning. They formed a self-protection unit and he acted as leader. According to his evidence they had to discipline criminals in the area because the police failed to do so. It was shortly before the 1994 elections and they had to prove to the community that they, representing the ANC as the government in waiting, would be able to protect them. If they did not do that the voters would not trust the ANC and they would lose support in the run-up to the elections. The applicant further testified that during the morning of 29 June 1993 three girls reported to him that they were raped and gave the names of the perpetrators. He summoned some of his comrades and they went to seek the persons being accused. They found some of the perpetrators and took them to the sports-ground where the girls and members of the community were waiting. They put the charges to them and decided to punish them. The applicant, members of the community and the three victims then assaulted the accused with sjamboks and sticks.
While they were busy administering the punishment Simiso Edmund Miya and Francis Bheki Hlatshwayo turned up and started firing shots at them. They were, according to applicant, also co-members of the gang whom they sought to punish. The community dispersed and fled. He took up a position behind a tree and when Miya came running past, he felled him to the ground with a knobkierie. the same happened to Hlatshwayo. According to him the community then joined him in the assault on the two. They later died as a result of the injuries sustained. The next day he went to their respective houses and explained the circumstances of their death to the families and apologised to them.
The above is a short summary of the events on the 29th of June 1993. The facts were not really in dispute and on the evidence it seems to be associated with a political objective.
The applicant then testified about the second incident. He said that this occurred on the following day at a stage when he was already aware that two of the victims who had been assaulted on the previous day had died. All the other witnesses testified that the second incident happened on 1 July 1993 and not 30 June 1993. It was later conceded by the applicant that 1 July 1993 was probably the correct date.
Applicant stated that between 07H00 and 08H00 on the relevant day, 1 July 1993, he received a report that a certain Ms Thokazani was raped by one Etosh Nkomo. They went and summoned Nkomo to accompany them and they followed the same procedure as on 29 June. He was accused of raping Thokazani and thereafter lashes were administered.
After they had summoned Nkomo to accompany them Maphe and Hlongwane voluntarily joined them. At the gathering a member of the community accused Maphe, Zwelethemba Wesley Hlongwane, of stealing a motor car belonging to one Themba. The applicant said that he sent for the owner who, on arrival, confirmed this and stated that he retrieved the car but that the engine had been removed. According to him all the people insisted the Maphe should also be punished.
While he and some of the members present were in the process of punishing and assaulting Nkomo he heard shouts that Maphe was running away. Members of the community gave chase and he realised that they may harm him if they got hold of him. He was still busy punishing Nkomo and did not partake in the chase of Maphe. He was not aware of the fact that he was caught and assaulted and only heard on the following day of his death.
He further stated that the victims were former members of the ANC who defected and joined the PAC. He did not act on orders but acted as chief Marshall protecting the community. He proceeded with the second incident after he had known that two of the previous assault victims died as a result of the assaults on them but took care that the alleged rapist whom he punished was not assaulted to such an extent that death might ensue.
Sipho Hlongwane, the father of the deceased, Maphe, then testified that he himself as well as the deceased were co- members of the ANC. He saw the applicant and a group of youngsters passing his house and on their return his son, Maphe, was in their company. He thought they were on their way to play soccer.
He later received a report from one, Paul, that his son was killed and went to the scene where they found his body. He testified that he is of the opinion that his son was killed out of hatred and that the applicant did not visit him after the incident to explain or to apologise. According to him the deceased, who worked as a motor mechanic, did repairs on Themba's car and kept the car as security for payment. A charge of theft was laid but later withdrawn after the deceased and Themba came to an agreement.
Sibusiso Luthuli, also testified about the assaults in the first incident. His evidence differs in certain respects but the Committee does not find it necessary to deal in detail therewith.
Dickson Miya, a brother of one of the deceased in the first incident could not throw light on the reasons for the killing of his brother, who, according to him, was a co-member of the ANC. Etosh Ngoma, the assault victim, in the second incident, incident also testified. Except for denying that he raped Ms Thokazani, he broadly confirmed the assault on him. He, however, stated that the applicant left the assaults to be carried out by other community members and took part in the chase after Maphe.
Martin Mamela confirmed the assaults on the first day. He, however, said that both deceased were assaulted while sitting on the ground and denied that there were any gun-shots.
The witnesses differed about the time period over which the assaults took place. They, however, seem to agree that it lasted from round about 09H00 to lunch time.
Mr Makhatini testified that he served on the executive of the ANC branch at Umgababa. He, to a large extent confirmed the applicant's version about punishing the victims for their criminal activities. He was not present on 29 June 1993. He did, however, attend on 1 July 1993. He said that Ms Thokazani confirmed that Nkomo raped her and that was the reason for punishing Nkomo. He further testified that they were aware of the previous deaths and did not want to kill. He personally took the knobkierie from the applicant to prevent a recurrence of the events on 29 June 1993.
He confirmed that Themba was called to explain about his car being stolen by Maphe. He stated that Themba told the community that the problem had been resolved and that there was no reason for punishing Maphe. The crowd was still angry and threatening and that might have been the reason for Maphe starting to run away and being pursued by some. He emphatically denied that he or the applicant took part in this chase. There was no need to punish Maphe because it was explained that the matter had been resolved. He said that the applicant who sent for Themba and questioned him would not have been aware that Themba told them that the dispute about the car had been resolved and that there was no need for punishment.
Before dealing with the first incident we find it necessary to deal with the legal issues that we have put to the representatives.
On the applicant's and Makhatini's evidence the applicant did not take part in the killing of Maphe. He had no intention to kill Maphe and did not assault, pursue or in any way form part of his killing. If that is so it is clear that he committed no offence in respect of which amnesty can be granted. It was not suggested by the legal representative of the applicant or the victims that he had common purpose with the killers of Maphe to murder the deceased. The leader of evidence, as was his duty, requested the Committee to consider whether there was not indeed common purpose on the part of the applicant to kill.
As stated in S v Mgedezi and others 1989 (1) SA 687 (AD) in the absence of proof of a prior agreement to kill the victim, a person who did not contribute causally to the killing or wounding of the victim can only be liable on the basis of common purpose if certain prerequisites are satisfied.
1. He must have been present at the scene where the violence was committed;
2. he must have been aware of the assault;
3. he must have intended to make common cause with those actually perpetrating the assault;
4. he must have manifested his sharing of a common purpose with the perpetrators by himself performing some act of association with the conduct of the killers;
5. he must have had the requisite mens rea. He must have intended the deceased to be killed or he must have foreseen the possibility of him being killed and performed his own act of association with recklessness as to whether or not death was to ensue.
We do not know what the evidence before that trial court was and on what basis the applicant was found guilty. The Committee is not sitting as a court of appeal. On the applicant's own evidence and the evidence of Makhatini he did not associate him with the killing in any way at all. On his evidence he committed no offence insofar as the killing of Maphe is concerned.
Apart from the reasons stated above it would be totally disproportionate to impose the death sentence on a person who retained possession of a motor car after repairing it and who later had settled the dispute with the owner of the vehicle, in order to pursue the political objective of election support for the ANC. The ANC also never ordered or instructed or condoned this killing.
In the result amnesty is GRANTED in respect of the following offences:-
1. The murder of Simiso Edmund Miya on 29 June 1993 at Umgababa in the district of Umbumbulu.
2. The murder of Francis Bheki Hlatshwayo on the same day and at the same place.
3. The attempted murders of five other people, namely; Sibusiso Luthuli; Sipho Sikhumbuso Luthuli; Mzo Mbonambi; Chunky Msiya and Ziswe Mbonambi on the same occasion.
4. The assault on Sandile Nkomo on 1 July 1993 at the same place.
Amnesty is REFUSED in respect of:-
The murder of Zwelethemba Wesley Hlongwane on 1 July 1993, also at Umgababa.
Signed at Cape Town on this the 3rd day of March 2000.
______Judge A Wilson
______AJ C de Jager
______Mr J B Sibanyoni AC/2000/034
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.
NICOLAAS JACOBUS JANSE VAN RENSBURG
(AM 3919/96) FIRST APPLICANT
HERMANUS JACOBUS DU PLESSIS SECOND APPLICANT
(AM 4384/96)
GERRIT NICHOLAAS ERASMUS THIRD APPLICANT
(AM 4134/96)
GIDEON JOHANNES Nieuwoudt FOURTH APPLICANT
(AM 3920/96)
DECISION
The applicants are former members of the then Port Elizabeth Security Police. They are seeking amnesty for their respective roles, as more fully set out hereunder, in the abduction and murder of Sipiwo Maxwell Mtimkhulu and Topsy Madaka in April 1982. Van Rensburg further applies for amnesty for perjury as he denied to the Harms Commission in 1990 any knowledge of what could have happened to the deceased. The abduction took place in Port Elizabeth near Holiday Inn Hotel, and the murder at Cradock the following day. At the time in question Erasmus was the Commanding Officer of the Eastern Cape Security Police Division and all the applicants worked under him.
They all supported the previous National Party Government, believed in its policies and saw it as their duty to keep it in power. They say the elimination of the deceased was necessary to curb high levels of political unrest and disturbances which prevailed in the Port Elizabeth area during 1981 and 1982. They also believed that the deceased were involved in ANC underground structures.
The applicants were the only witnesses to testify and no oral evidence was received from the side of the Mtimkhulu and Madaka families who opposed the applications.
At the time of the occurrence of the events referred to herein Mtimkhulu was a 22 year old youth and one of the leading figures in the Congress of South African Students (COSAS), which primarily opposed some of the policies of the previous government on education. There seems to be no dispute that COSAS was aligned with the African National Congress (ANC). Madaka was not a student and is said to have been employed as a salesman by an insurance company in Port Elizabeth. It is common cause that he frequently transported Mtimkhulu with his vehicle and the two were together when they were abducted and subsequently killed. For reasons that will emerge later, it is compelling to commence our decision with the last detention of Mtimkhulu before his abduction and murder.
On the 31st May 1981 Mtimkhulu was detained under section 6 of the then Terrorism Act for his participation in a demonstration which opposed National Party celebrations for what used to be known as the "Republic Day". We pause here to mention that, under the previous order that day was not recognised as such by liberation movements and other groups which opposed the Apartheid order inside the country. No charges were laid against Mtimkhulu who was released on the 20 October of the same year. On his release he was not served with any banning order to restrict his movements and activities. Immediately upon his release he was very sick. According to his mother Joyce Mtimkhulu, who previously testified before the Human Rights Violations Committee of the TRC, he complained of pains in his stomach and feet. By the second day he was unable to walk and on 26 October he was admitted at Livingstone Hospital. From there he was later transferred to Groote Schuur Hospital for diagnosis. There he was hospitalised from 3 November 1981 to 17 January 1982 when he was discharged on condition that he returned later for review. On his discharge he was on a wheelchair as he could not walk. Whilst at Groote Schuur his hair had begun to fall. This particular information was contained in bundles "A" and "B" which were placed before the Committee at the hearing.
Medical tests and investigations revealed that he had in all been probability been poisoned with thallium, a rare type of poison.
Professor Francis Rix Ames who was the Head of the Neurology Department and other medical officers who all attended to Mtimkhulu at Groote Schuur did not testify at the hearing. Applicants stated that they neither admit nor deny the correctness of the said findings. They however deny having poisoned Mtimkhulu or having any knowledge of the person who could have done so.
When Mtimkhulu disappeared on the 14 April 1981 after he had gone for a medical check up at Livingstone Hospital, he had already filed two civil claims against the Minister of Police for the alleged acts of torture and poisoning, the first one having been issued in December 1981 and the second on 2 April 1982. A judicial inquiry into the alleged poisoning had also been scheduled for hearing at the Port Elizabeth Magistrate's Court on the 5 May 1982 and some of the members of the security police had been subpoenaed to appear.
The evidence of the applicants is as follows: About 10 to 14 days before the 14 April Erasmus was approached by Du Plessis and Van Rensburg. They discussed with him the role of Mtimkhulu and Madaka in the promotion of political unrest in the Port Elizabeth area, and in particular the role Mtimkhulu was playing since discharge from hospital. He was once again getting too involved in mobilising the youth and students. To this end, he was being assisted by Madaka who had a vehicle and played a very secret role in the promotion of the aims and objectives of the ANC. According to reliable sources they were both involved in an underground ANC cell and recruited the youth to undergo military training outside South Africa. Madaka acted as a courier for the ANC and used his vehicle to transport weapons between Lesotho and Port Elizabeth. He had set up "Dead Letter Boxes" (DLB's) for hiding arms. When ANC cadres infiltrated the area Madaka looked after them and their needs. He also had a brother in exile. Erasmus also says at that stage he was also aware that in 1979 (1978) at the funeral of the late Robert Sobukwe, a PAC leader, both Mtimkhulu and Madaka were involved in a shoot out on Gatsha Buthelezi and his security guard who sustained injuries. Previous detentions to curb Mtimkhulu's activities had yielded no positive results.
Erasmus says in their discussion they reached a stage when they asked themselves the question: "What must we do ---- with the two people?". At that stage Mtimkhulu was already being regarded as a martyr because of his suspected poisoning, allegedly by the police. This he used as propaganda against them and as a tool to mobilise and radicalise youth. He specifically incited them against the police. In that discussion they all felt that their head office would never authorise another detention of Mtimkhulu since he had not fully recovered. He was still sick. There was also a possibility that his detention could provoke further political unrest and riots. Madaka also could not be detained for the reason that the identity of a very delicately placed informer who operated closely with him could be exposed.
They had several discussions regarding what should be done with the two. Du Plessis and Van Rensburg had to go and come back to Erasmus with possible solutions but in the end there was no other way to deal with the two, but to eliminate them. Although in the end this was a joint decision, Erasmus says he takes full responsibility for having given the instruction because he was the Commanding Officer. He was not involved in the details of the planning regarding when and where the elimination would take place, but it was agreed that Mtimkhulu and Madaka would be abducted and taken to a secret place where they would be killed. It was up to Du Plessis and Van Rensburg to decide who to involve amongst other security policemen. He later became aware that they were going to involve Nieuwoudt in the operation. When the abduction took place he was telephonically informed that the two had been abducted and were being conveyed to the place where they were going to be killed. The next day Van Rensburg told him that the elimination had been carried out. He did not ask for details because this was a "need to know basis" operation.
As the hearing progressed it became clear that the real issue in this matter namely whether the applicants should get amnesty for murdering the victims in April 1982, became clouded by what may have been an earlier attempt to murder the deceased Mtimkhulu during October 1981. The applicants are not applying for amnesty in respect of this attempted murder. This would be a separate offence and if one or more of the applicants would on evidence which might be available, be suspected of the commission of that offence they could and should be prosecuted in that regard. The granting of amnesty in the present applications would not affect that position because the Committee is presently dealing with a different offence, committed at a different time and place and also involving a further victim. Matters that might be relevant facts relating to the earlier offence might not be relevant to the same extent in the later offence and vice versa.
Another factor that we had to consider is the weight to be attached to the statements of possible witnesses who didn't testify before the Committee. In this respect we refer to the statement of Mrs Mtimkhulu and the report of Professor Amis. They did not testify at the hearing and could not be cross-examined by the legal representatives of the applicants. While realising that this Committee is not a court of law, the rules of natural justice and entrenched fundamental rights has still to be observed. Their "evidence" related to the first offence, the attempted murder on which the Committee was not called upon to adjudicate, and we would deal with it on that basis. We don't say that it is totally irrelevant or should be ignored but the weight attached thereto should be considered in the light of what was said above.
After hearing the evidence and reading the statements there is at least prima facie evidence that there was an attempt to murder Siphiwo Mtimkhulu while he was in custody during October 1981 or shortly thereafter. There may even be a suspicion that one or more of the applicants might have a hand therein. It is equally possible that they might not have been involved at all because on the evidence before the Committee one or more members of the Security Police who were not parties to this hearing might equally have had the opportunity to administer poison to the victim, as well as other persons not even directly involved. All the applicants deny that they were involved in an attempt to murder the deceased during October 1981 and there is no evidence before us to contradict their denial. It could cause grave injustice to regard suspicion as proof against one or all of them, and if against one, who would be that one?
The fact of the matter, however, is that the consequences of the attempt to murder during October 1981 played a part in the leading up to the offences during April 1982 on which the Committee is called to decide. These factors have been summarised at the outset. The three applicants, van Rensburg, du Plessis and Erasmus, who took the decision to eliminate the deceased, denied that they took the decision to eliminate the deceased in order to protect the Security Police. They testified that at that stage it was already well publicised that Mtimkhulu has instituted legal action and what his allegations were. The reasons advanced for their decision were that the deceased was considered to be a martyr and gained more and more support in his stance against the government. During the beginning of 1982 there was a political turmoil in Port Elizabeth. Houses were burnt down and the police clashed with Cosas. Class boycotts followed and there were bomb attacks on government buildings. Mtimkhulu was actively involved in mobilising the youth and students against the government. According to information gained from an informer the deceased were involved in an underground ANC cell and recruited youth to undergo military training outside South Africa. No evidence was tendered to contradict his involvement in the political struggle. The evidence of the applicants stands uncontradicted and is to an extent supported in the statement of Mrs Mtimkhulu "what I mean is the political involvement. Siphiwo was very much involved, he was a staunch member of the organisation. We realised that we couldn't do anything, he seemed to be addicted. And seemingly he was regarded as influential and being an instigator".
She continued about his conduct after his detention:
"After six months he was released. He continued with politics, he never turned his back. Each time he was detained, he would come out and be stronger than before".
Erasmus stated that he took the decision in order to protect the National Party government of the day and to keep the government in power.
According to the evidence Madaka was involved in arms smuggling and establishment of safe houses. It is true that this information obtained from an informer wasn't confirmed by extraneous evidence. But it is also true that no evidence was tendered on behalf of Madaka whose family was legally represented at the hearing that Madaka was not involved in the struggle and did not take part in the alleged activities.
The Act (Act 34 of 1995) lays down the requirements for amnesty.
Section 20(1)(a) stipulates that the application should comply with requirements of the act. It was common cause that the applications were formally in order and filed timeously.
Section 20(1)(b) requires the Committee to be satisfied that: "the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsections (2) and (3).
It is common cause that the offences were committed in the course of the conflicts of the past. The applicants also meet the requirements laid down in section 20(2)(a)(b)(f) and (g). Section 20(2)(b) in particular deals with members of the Security Forces of the State. The relevant part reads as follows:-
"(b) ------any member of the Security Forces of the State ----- in the course and scope of his or her duties and within the scope of his or her express or implied authority against a publicly known political organisation or liberation movement engaged in a political struggle against the State ----- or against any members or supporters of such organisation of movement -"
It is common cause that all the applicants were members of the Security Forces. Similarly, it is common cause that both deceased were members or supporters of political organisations who were engaged in a political struggle against the state.
The provision of Section 20(3) remain to be dealt with. this subsection deals with the criteria for deciding whether the act committed was an act associated with a political objective.
Section 20(3)(a) requires the Committee to look at "the motive of the person who committed the act". All the applicants testified that they killed the deceased because they wanted to protect the government of the day and to keep them in power. There is no evidence negating this. They denied that their motive was to prevent Mtimkhulu from pursuing his legal action against the State for damages flowing from his poisoning which might have been extremely damaging to the government of the day and the security police. Although it seems improbable that this wouldn't have been a factor in their deliberations, their denial can only be rejected if it can be said that in coming to the decision at the time the other problems prevailing in the area, were not paramount in their minds. The unrest must, in their minds, have been of such importance that it overrode all other factors.
It must be also kept in mind that the decision to eliminate was taken by Erasmus in consultation with van Rensburg and du Plessis. There is no evidence that Nieuwoudt was party to this. On the evidence he received an order to carry the elimination after it had been taken by his superiors.
Subsection 20(3)(b) requires the context in which the act has been committed to be considered. The evidence was that during the beginning of 1982 boycotts, marches, burning of houses, and recruiting of members for military training and smuggling of weapons into the area were part of the ongoing struggle between the liberation movements and the government. The deceased played an active role: Mtimkhulu in inciting people and Madaka more clandestinely in underground activities.
Section 20(3)(c) refers to the legal and factual nature of the act. Murder can never be regarded as negligible. Unfortunately the Committee had to deal with this in almost every amnesty application in which a hearing was required and where amnesty was granted for killing opponents and even innocent people including children and infants.
Subsection 20(3)(d) lays down as one of the criteria "the object or objective of the act and whether it was primarily directed a political opponent". Crude as it may be, it is clear that the objective was to eliminate the deceased so that they wouldn't be in a position to carry on with their opposition to the government.
Subsection 20(3)(e): "whether the act was committed in the execution of and order of, or on behalf of or with the approval of ----- the institution." Nieuwoudt clearly acted under instructions. The other applicants maintain that they acted in the course and scope of their employment and that they acted in the interest and on behalf of the government.
Subsection (3)(f) the relationship between the offence and the political objective being pursued ----- or the proportionality between the offence and the objective pursued". According to the applicants they decided to eliminate the deceased because detaining him served no purpose. This seems also to be the opinion of Mrs Mtimkhulu who stated that after being detained "he would come out stronger than before".
After considering other decisions where amnesty was granted, even in cases where churchgoers or holiday makers or children were killed, we cannot find that in this instance the act was so disproportionate to the object pursued that amnesty should not be granted, bearing in mind that something akin to a war situation existed in the country.
It now remains to deal with the requirement laid down in section 20(1)(c). Did the applicants make a full disclosure of all the relevant facts? They certainly disclosed fully how they abducted the deceased, killed them, where they killed them, and what happened to their remains. Not only in evidence but also in their applications they disclosed the facts about the alleged poisoning of one of the deceased. It is true that they deny that they were responsible for the alleged poisoning. It is also true that no evidence was laid before the Committee to prove that they were responsible for the poisoning or that they knew who was responsible for the poisoning. As already stated they didn't ask for amnesty in this regard and no amnesty can be granted to them in this respect. Whoever might be responsible for the attempted murder through poisoning of Mtimkhulu can still be and should still be prosecuted. The facts pertaining to the poisoning relate to another offence which might have been committed by other perpetrators. Those facts are not per se relevant facts to the offence in respect of which amnesty is sought but have been taken in consideration as relevant as far as a motive for the killings may be concerned.
Having made the enquiry into the jurisdictional facts which had to be proved and having found that those facts exist, in terms of section 20(1) of Act 34 of 1995 the Committee has no discretion - it "shall grant amnesty".
We are therefore satisfied that the following order should be made:
1. Amnesty is GRANTED to Erasmus, van Rensburg and du Plessis in respect of the conspiracy to abduct and murder Mtimkhulu and Madaka during April 1982 at or near Port Elizabeth.
2. Amnesty is GRANTED to all the applicants in respect of the murder of Mtimkhulu and Madaka on or about 14 April 1982 at Post Chalmers in the district of Cradock, and for offences and delicts directly linked to what happened on that specific date.
3. Amnesty is GRANTED to van Rensburg for perjury committed before the Harms Commission in 1990 where he denied any knowledge of the abduction and death of the deceased.
4. Amnesty is GRANTED to Nieuwoudt in respect of the abduction of Mtimkhulu and Madaka on or about 14 April 1982 at Port Elizabeth.
The next-of-kin of the deceased should be declared to be victims in terms of Act 34 of 1995.
Signed at Cape Town on this the day of 2000.
Judge A. Wilson
C.D. de JAGER (AJ) Adv. N. Sandi AC/2000/035
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.
EPHRAIM MOTTOMAN NKOSI APPLICANT
(AM 3123/96)
DECISION
The applicant is applying for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 1995, (Act 34 of 1995) hereinafter referred to as "the Act". The offences which he is applying are the following:
1. Armed robbery of an employee of a hotel in Rosebank and for which applicant was found guilty and sentenced to 5 years imprisonment.
2. Armed robbery of an employee of Flamingo Dry Cleaners and for which applicant was found guilty and sentenced to 4 years imprisonment.
3. Armed robbery of a petrol garage in Daveyton and for which applicant was found guilty and sentenced to 15 years imprisonment.
4. Armed robbery of awaiting trial prisoners which took place on --- and for which applicant was sentenced to 10 years imprisonment.
5. Attempted murder of a policeman whilst trying to escape from prison. Applicant was never convicted for this offence.
6. Attempted murder of a certain Mr du Plooy in Standerton during October 1981 and for which the applicant was sentenced to death. The death sentence was later commuted to 30 years imprisonment.
7. Unlawful possession of firearms.
8. Unlawful possession of ammunition.
9. Arson to a bus depot in June 1976.
The applicant made his application by way of filling in his application form and by supplementing the facts by way of a statement, an affidavit as well as a supplementary affidavit.
POLITICAL BACKGROUND
He stated that during 1973 he joined ANC whilst he was staying with a certain Reverend Damoyi in Manzini and with the Minister of Forestry a certain Mr S.D.Z. Dlamini in Mbabane. In 1974 he was employed as a long trip driver at Iscor. Whilst in his employ at Iscor he became an underground operative of the ANC. His main task was to gather information and set underground networks in accordance with military combat work. He also used company cars to ferry arms from Swaziland to South Africa and also created Dead Letter Boxes (DLB). He was also charged with the task of recruiting immigrants particularly the British to join the anti-Apartheid Movement and popularise the work of Peter Hain.
In 1976 just before the 16 June, whilst on leave at work he went to Luanda where he received a crash course training by the Umkhonto Wesizwe in Military Combat Work, Dead Letter Boxes, politics and explosives.
Just after June 1976 there was a big bus boycott and as a result a bus depot was burnt down. The applicant states that he was involved in the burning of the bus depot.
Towards the end of 1976 he recruited a former Rhodesian whom he mistook to be British to join the Anti-Apartheid Movement. It was after this incident that his cover was blown. He was then exposed to the Special Branch Unit. The Special Branch put pressure on him to join them as an informer. He refused to join them and this led to dismissal from Iscor. After this incident he was under 24hr surveillance by the Special Branch. It became increasingly difficult for the applicant to maintain contact with his links in Swaziland. The prospects of being employed were reduced.
He stated that his MK links were Morris Sabelo, Jabu Dumane and a certain Pat Nkutswane. He however states that despite the fact that he was no longer employed, and no longer had access to transport, his orders to continue establishing underground networks in terms of the Military Combat works still stood. It was as a result of these circumstances that he committed his offences.
THE FIRST ROBBERY
The applicant and a certain Peter Mchunu who was a well known criminal robbed an employee of a hotel in Rosebank of money that was intended for their employee's salaries. The applicant and his accomplice were armed and pointed the gun at the employee. They demanded the money which the employee gave to them. They escaped with R7000.00 which they shared equally. The applicant stated that he chose Peter Mchunu in order to use him as a cover in order not to divulge his political involvement.
The second robbery took place in Rissik Street near Flamingo Dry Cleaners. The lady was walking toward Flamingo Dry Cleaners carrying a money bag. She was then robbed by three black men who were unknown to the applicant. However the applicant together with Mchunu pointed their firearms at these three men, took the bag and ran away. There was a sum of R6000.00 in the bag. This money was shared between the applicant, Mchunu and one Dave who was involved at the time of the planning of the robbery but was not present when the robbery took place.
The third robbery took place in Daveyton. The target was a petrol garage. The applicant together with Mchunu robbed the owners of this garage and took a sum of R8000.00. They shared the money. The applicant says he used his share of this money to secure Dead Letter Boxes and to distribute arms to MK operatives.
After his arrest he received orders from Morris through Jabu to escape if possible. The plan was to rob other awaiting trial prisoners who would then lay a charge against him. As an accused person he would have to go to court. He stated that it was easier to escape from court than from prison. The escape plan however failed and the applicant was sentenced to ten years imprisonment for the offence.
On the 31st October 1980 a case of attempted murder was opened against the accused for stabbing a policeman with a knife whilst trying to disarm him of his gun in an attempt to escape. The applicant stated that he was never convicted for this offence.
On 12 August 1981 the applicant together with one George Mntambo and others escaped from prison. On 6th October 1981 they wanted to leave the country. They stopped at Standerton in order to get some food. The applicant remained in the car. George went into the shop to buy some food. George became involved in a fight with a certain white man who turned out to be du Plooy. The applicant went out to stop the fight but the police were called and they were arrested. The applicant learned later from George that he was attempting to rob du Plooy because he was from the bank and had a money bag with him. George reasoned that they needed money to get them as far as Natal. They were both convicted and sentenced to death for this offence. The death sentence was later commuted to 30 years imprisonment. The applicant however states that he takes full responsibility for George's actions as George was his recruit. In order to be granted amnesty the Committee, after considering an application for amnesty must be satisfied that:-
(a) the application complies with the requirements of the Act;
(b) the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past;
(c) the applicant has made a full disclosure of all relevant facts.
Insofar as Section 20(1)(a) of the Act is concerned, the Committee is satisfied that the application was made on the prescribed form, was properly attested to and was received before the cut-off date.
The main question to be decided is whether or not the acts were committed or associated with a political objective and whether or not the applicant has made full disclosure.
The applicant was the only person to give evidence. No witnesses were called on his behalf. This application was also not opposed.
POLITICAL OBJECTIVE
The applicant has stated that he was a member of the ANC and was a trained MK member. A letter was received from the ANC confirming that the applicant was indeed a member of ANC and an MK underground operative.
According to Section 20(2)(f) of the Act, an act associated with a political objective means any act or omission which constitutes an offence or delict which according to the criteria in subsection (3) is associated with a political objective and which was advised, planned, directed, commanded, ordered or committed within or outside the Republic during the period 1 March 1960 to the cut-off date by any person referred to paragraphs a, b, c, and (d) who on reasonable grounds believed that he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority.
The applicant has stated that when committing the robberies he did not get any orders to commit the robberies. He was asked under cross examination whether or not he knew that the robbery was not part of the policy of the ANC. He answered that he knew that very well. However, he states that because of the task that he was given, he had to use his own discretion as the situation presented itself. It seems that the applicant is relying on what he purports to be implied authorization. The question is whether he had a reasonable belief that he was acting within the scope of his implied authority. The Committee is not satisfied that the applicant had reasonable grounds to believe that in order to be able to move the arms there was an implied order to do whatever including committing robberies in order to have funds to move the arms. Robberies were especially in the late seventies and early eighties not part of the ANC policy.
In the criteria to be used in determining whether or not an act was associated with a political objective, section 20(3) states that one must look at the object or objective of the act, omission or offence, and in particular whether the act, omission or offence was primarily directed at a political opponent or State property, or personnel or against private property or individuals.
In all the cases of the robbery the targets were private individuals. They were not political targets. It is highly unlikely that a trained MK operative would attack innocent people and rob them to pursue a political objective. Also in Section 20(3)(f), one must look at the directness and proximity of the act and to the objective pursued. The applicant committed three robberies on innocent people in order to be able to buy a car which could move the arms from one place to another. The robberies took place within a period of about two to three months. It is highly unlikely that it would have been impossible for the applicant to communicate with the MK in order to get orders on how to move the arms within that period. Further he states that he was always under a 24hr surveillance by the Security Branch and yet the Security Branch did not catch him whilst he was committing these robberies. Further there were no other MK members involved in these offences. All these robberies were done with criminals.
After considering the evidence of the applicant the Committee is not satisfied that the applicant committed first three robberies with a political objective. It thus follows that the other offences after the arrest, armed robbery of awaiting trial prisoners, the attempted murder of a policeman whilst trying to escape from prison were never committed with a political objective.
As regards the robbery and attempted murder of Mr du Plooy the applicant states that he himself knew nothing about his robbery when he went out to go and stop the fight. He clearly denies guilt in this aspect. The fact that he says he is taking responsibility for George Mntambo's actions is only an attempt to bring the offence within the ambit of the Act.
In regard to the unlawful possession or of firearms and ammunition, it is not clear whether these offences relate to the armed robberies for which he is applying for amnesty. If it is so then amnesty cannot be granted because the robberies were not committed with a political objective. In fact the aim was for personal gain.
Amnesty is accordingly REFUSED in respect of all the offences of robbery, attempted robbery, escape, attempted murder and unlawful possession of firearms and ammunition committed by the applicant.
As regards the arson of a bus depot shortly after June 1976, the Committee is prepared to accept that there was a political objective and therefore amnesty is GRANTED for the burning of the bus depot.
Signed at Cape Town on this the day of 2000.
Judge S. Miller
C. de Jager (AJ)
Adv. S. Sigodi AC/2000/036
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.
SYDWELL MZWAMADODA NTISANA FIRST APPLICANT
(AM 6359/97)
ZANDISILE EDWIN BONGWENI SECOND APPLICANT
(AM 6360/97)
HLUMELO NDZWANENKULU MXUTU THIRD APPLICANT
(AM 6363/97)
PUMELELE GUMENGU FOURTH APPLICANT
(AM 3610/96)
THOMAS MAZIZI NTISANA FIFTH APPLICANT
(AM 6361/97)
FUNDEKILE BLACKIE NOMBANGA SIXTH APPLICANT
(AM 6364/97)
DECISION
Sydwell Mzwamadoda Ntisana (the "1st Applicant"), Zandisile Edwin Bongweni (the "2nd Applicant"), Hlumelo Ndzwanenkulu Mxutu (the "3rd Applicant") and Fundekile Blackie Nombanga (the "6th Applicant") apply for amnesty in respect of conspiracy to commit treason. Pumelele Gumengu (the "4th Applicant") and Thomas Mazizi Ntisana (the "5th Applicant") apply for amnesty in respect of treason.
Towards the end of 1987 the Transkeian government, under the leadership of Prime Minister Stella Sigcau, was overthrown in a bloodless coup d'etat. The country was then governed by a Military Council under the chairmanship of General Holomisa. Colonel Craig Duli was a senior member of such Military Council. During 1989 Colonel Duli was arrested and detained on the suspicion that he was planning to take control of the government. He was released from such detention on 16 December 1989 in compliance with a court order. After his release he left Transkei and went to the Border area.
According to the evidence led before us, Colonel Duli requested the 5th Applicant, who was a former member of parliament in the Sigcau government and who was well known to him, to bring the 1st, 2nd and 3rd Applicants to him for a meeting. The 1st, 2nd and 3rd Applicants were all non-commissioned officers in the Transkei Defence Force and were also known to Colonel Duli, they having previously worked with him. The 5th Applicant took the said other Applicants to Colonel Duli at Stutterheim on 7 January 1990.
th st nd rd At the meeting, which was not attended by the 5 Applicant, Colonel Duli informed the 1 , 2 and 3 Applicants that he intended to overthrow the military government and to return Transkei to civilian rule as soon as possible. He told them that the coup d'etat was planned to take place on 15 January 1990 and that he had procured the support of many senior officers in the Transkei Defence Force. He requested the said Applicants to inform lower rank members of the Special Force who were stationed at Port St. Johns of the imminent coup. The said Applicants expressed their support for the plan and agreed to help as requested. They proceeded to Port St Johns where they informed certain members of the Special Force of the coming coup d'etat.
Shortly thereafter it was learnt that the authorities were aware of the planned coup d'etat and it was called off on 14 January 1990. The 1st, 2nd and 3rd Applicants were arrested on 16 January 1990. They were charged with and convicted of conspiracy to commit treason in the Regional Court. They were each sentenced to eight years imprisonment, four years of which was suspended on certain conditions. They all served their term of imprisonment. They were not in any way involved in the failed coup d'etat which took place during November 1990.
We are satisfied that the 1st, 2nd and 3rd Applicants have given a full and truthful account of the role they played in the conspiracy to overthrow the Transkei government during January 1990. We are also satisfied that their acts were associated with a political objective as contemplated by the provisions of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). Their applications for amnesty accordingly succeed.
The 5th Applicant testified that he was strenuously opposed to the government of the Military Council. His main grievance, he stated, was that the Military Council had reneged on an undertaking to hand over to civilian rule. He was not aware of the fact that Colonel Duli had planned a coup d'etat for 15 January 1990. He only heard of such after it was aborted and after the 1st, 2nd and 3rd Applicants had been arrested. He, however, thereafter had various meetings with Colonel Duli during the course of 1990 at which the overthrow of the Military Council was discussed.
Duli planned that the coup d'etat which was to take place on 21/22 November 1990, be in two stages. The first stage, called Operation Sacrifice, involved the actual arresting of power from the Military Council. Duli himself and other persons with a military background were to conduct this stage. The second stage, called Operation Dawn, involved the establishment of an interim government with Paramount and other chiefs. This stage would commence on the completion of Operation Sacrifice and would be conducted by the 5th Applicant.
The 5th Applicant stated that Duli informed him that the coup d'etat would be similar to that which took place during 1987. He therefore did not expect that there would be any fighting or bloodshed involved.
On the night of 21 November 1990 Duli instructed the 5th Applicant to proceed to Umtata via Queenstown, where he was to pick up three members of the Lesotho Liberation Army ("LLA"), and Maclear. The 5th Applicant went to Queenstown and picked up the three members of the LLA. He stated that they were all unarmed. He had some propaganda tape recordings in his possession and a radio set. They then proceeded towards Umtata, keeping in regular radio contact with Duli. The last radio contact with Duli was in the vicinity of Maclear. They proceed to Tsolo where they waited for some time. They still received no further radio contact with Duli and deemed it safer to go back to South Africa. They drove back to Maclear and heard a news flash that the coup d'etat failed. He then took the three LLA members back to Queenstown and he went to East London where he destroyed the propaganda tapes. Some time later the 5th Applicant gave himself up to the Transkeian authorities. He was detained and charged with treason and murder together with a number of co-accused. He was, after a lengthy trial, convicted as charged and sentenced to an effective eleven years imprisonment. He was, during 1994, released from prison after being granted indemnity.
The failed coup d'etat was not non-violent and bloodless as 5th Applicant stated he expected it would be. It commenced with a surprise mortar bomb attack on the new recruits barracks at the Ncise military base. Six recruits were killed in this attack and thirty three others were injured. Fighting also took place in the city centre where a seventh soldier was shot and killed.
We are satisfied that the 5th Applicant acted with a political objective in participating in the failed coup d'etat notwithstanding the fact that he may have been personally advantaged had it succeeded. The whole operation was, in our view, primarily politically motivated and any personal advantage gained by its participants would have been a secondary spin-off.
We are, after careful consideration, also of the view that the 5th Applicant has satisfied the criterion relating to full disclosure. There is no direct evidence to contradict his evidence that he did not know that physical force would be used. His evidence in this regard also cannot be rejected on the basis of it being so improbable as to it being untruthful. He was not involved in Operation Sacrifice and it may well be that that stage of the operation was conducted on the so- called "need-to-know" basis. The criticism of his evidence that he did not give details of the various meetings he attended concerning the planned coup d'etat also does not persuade us that his application should be refused for lack of full disclosure. He, during his testimony, did not decline to answer any questions put to him and there is nothing to indicate that he would have failed to answer questions pertaining to such meetings had they been put to him. We are therefore of the view that his application for amnesty succeeds.
Both the 4th and 6th Applicants were members of the Transkeian police force at the relevant time. The 4th Applicant was a member of the Anti-Terrorist Unit and the 6th Applicant was a member of the Security Branch. They both testified that they were ordered to infiltrate the group that was planning the coup d'etat. The 4th Applicant received his instructions from his superior officer, Captain Mfazwe and the 6th Applicant received his orders from Colonel Booi. Pursuant to such orders the 4th Applicant had at least two meetings with Colonel Duli and relayed the information gleaned therefrom to the police. The 6th Applicant, in carrying out his orders, attended a meeting at Port Shepstone during 1989 with a Mr Mbotoli, who was a leading player in the subsequent failed attempt to overthrow the government. After attending the meeting he reported back to Colonel.
Both the 4th and 6th Applicants deny that they acted in concert with the plotters and that they committed any offence or wrong. They both aver that they were merely performing their duties as policemen. Their legal representative, Mr Malan, correctly conceded that they have not satisfied the requirements of the Act entitling them to amnesty.
In the result:
1. Sydwell Mzwamadoda Ntisana is GRANTED amnesty in respect of conspiracy to commit treason committed by him during or about January 1990;
2. Zandisile Edwin Bongweni is GRANTED amnesty in respect of conspiracy to commit treason committed by him during or about January 1990;
3. Hlumelo Ndzwanenkulu Mxutu is GRANTED amnesty in respect of conspiracy to commit treason committed by him during or about January 1990;
4. Pumelele Gumengu is REFUSED amnesty;
5. Thomas Mazizi Ntisana is GRANTED amnesty in respect of all offences and delicts arising out of the role played by him in the failed attempt to overthrow the Transkeian Government on 21/22 November 1990;
6. Fundekile Blackie Nombanga is REFUSED amnesty.
We are of the opinion that the next-of-kin of the seven members of the Transkeian Defence Force who were killed and the thirty three members of the Transkeian Defence Force who were injured at or near Umtata on 21/22 November 1990 are victims and this matter is referred to the Committee on Reparation and Rehabilitation for consideration in terms of the provisions of the Act. DATED at CAPE TOWN this day of 2000.
JUDGE D POTGIETER
JUDGE S M MILLER
MR J B SIBANYONI AC/2000/037
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.
CHRISTOFFEL PIERRE VAN DER WESTHUIZEN
(AM6499/97) FIRST APPLICANT
JOHANNES LODEWIKUS GRIEBENAUW
(AM5182/97) SECOND APPLICANT
DECISION
The Applicants apply for amnesty in respect of any criminal activity they may have been involved in with regard to their participation in the operation which was code-named "Katzen".
Operation Katzen was formulated during 1986. At that time Christoffel Pierre van der Westhuizen ("the 1st Applicant") was a member of the South African Defence Force ("the SADF") holding the rank of brigadier. He was the Commander of the Eastern Province Command, having been appointed to that position on 1 January 1983. He was also chairman of the Joint Management Centre ("the JMC") of the Eastern Province. The JMC was a pro-active body with the responsibility of, inter alia, monitoring the security situation and addressing regional problems. In his capacity as chairman of the JMC the 1st Applicant was accountable to the State Security Council ("the SSC").
Johannes Lodewikus Griebenauw ("the 2nd Applicant") was, during 1986, a member of the South African Police ("SAP"). He held the rank of Colonel and was initially the Deputy Commander and then, from 1 October 1986, the Commander of the Security Branch of the Border Region.
During 1984 and 1986 political unrest in the Eastern Province increased. Political violence and riots became the order of the day and the security situation, from the government's perspective, was threatened and undermined.
One of the instructions the JMC received from the SSC was to:
"provide for the co-ordination of long term planning with the aim of developing the well-being of particular communities to the optimum as well as contingency planning to control the security situation by having in place short term plans to deal with bottlenecks and grievances which can be exploited by the enemy".
In order to fulfil this instruction the 1st Applicant appointed an advisory board to assist in the formulation of a plan. The end product was Plan Strelitzia. The objective of Plan Strelitzia was, in general, to create organs to replace existing management organs and to introduce anti-revolutionary government structures for the Eastern Cape. The plan was submitted to the SSC but was, on 12 June 1985, rejected.
Both the State President, P.W. Botha, and the Minister of Defence, General M. Malan, personally ordered the 1st Applicant to ensure and safeguard the security of the region. The Minister of Defence visited the Eastern Province Command on 20 August 1985 and on 26 September 1985 and on both occasions demanded that the 1st Applicant see to it that the Eastern Province be stabilised.
This led to the 1st Applicant, with the assistance of two senior officers, to formulate a further master plan for the region. The 1st Applicant submitted this further plan to Lieutenant General A.J. (Kat) Liebenberg for his consideration. The plan was finetuned and given the name "Katzen", being a derivation from the names "Kat" Liebenberg and van der Westhui"zen".
Katzen was an unconventional plan which, if accomplished, would have had farreaching effects in the Eastern Province, Ciskei and Transkei. It, in brief, envisaged the establishment of a Xhosa Resistance Movement ("the XRM") which would ultimately lead to the political unification of Ciskei and Transkei and the incorporation of the so-called "White Corridor" into a new state called "Xhosaland".
The plan was to be implemented in four phases. The first phase included the establishment of the XRM, the freeing of Charles Sebe from the Middledrift Prison and appointing him as the leader of the XRM, the image-building of the Ciskei People's Right Protection Party ("the CPRPP"), a coup d'etat in Ciskei involving the overthrow of Lennox Sebe and his government and the conclusion of a security alliance between the SADF, the Transkei Defence Force and the Ciskei Defence Force. This phase was to be concluded by November 1986.
The second phase involved the setting up of an Eastern Cape Confederation of States. The Eastern Cape would acquire provincial status and second-tier government and would form part of the confederation together with Ciskei and Transkei according to the Kwa-Zulu Natal concept. This phase was to be completed by January 1987.
The third phase involved the political unification of Ciskei and Transkei. This phase was to be completed by June 1987.
The fourth phase involved the incorporation of the corridor resulting in such area together with that of Ciskei and Transkei becoming a State known as Xhosaland, the recognition by South Africa of Xhosaland as an independent State and the holding of a general election in Xhosaland. This final phase was to be completed by December 1987.
The stated objective of the plan was to attain "a condition of permanent normality in the Easter Cape" and to establish a model to permanently clamp down on the revolution in the Eastern Cape.
After the plan was submitted to General Liebenberg by the 1st Applicant it was, during July 1986, presented to General J. Geldenhuys, the head of the SADF, at a meeting which was, inter alia, attended by General J. Coetzee, the Commissioner of Police, and Mr Holl and Colonel More. General J. Coetzee expressed a lack of enthusiasm in the plan and Dr. N. Barnard indicated that his Department would not partake in its execution but requested to be kept informed of developments.
The 2nd Applicant also, on the instruction of his superior officer, Brigadier Schoon, attended a meeting in Port Elizabeth where he was appraised of the plan. He too expressed a lack of enthusiasm for the plan.
Also during July 1986 a meeting was held by 1st Applicant with Mr G. Matanzima, the Prime Minister of Transkei, Mr L. Maqoma, the leader of the CPRPP, Mr Namba Sebe and Mr N. Nomoyi. They all approved of the plan. It was agreed to establish the XRM under the name Liso Lomzi Movement with its head office on a farm in the Elliot district. Nambe Sebe indicated that he was prepared to train members of the XRM. It was also recommended that Charles Sebe be sprung from prison on the night of 25/26 September 1986. It was also decided that Kwane Sebe, the son of Lennox Sebe, should also be removed as he was the head of the Elite Unit of Ciskei.
On 31 July 1986 monies in the amount of R15 000,00 were paid over to Messrs Maqoma and Namba Sebe to assist them in the establishment of the XRM.
The 2nd Applicant was instructed to gather information relating to the Middledrift Prison and, in particular, the identification of the cell in which Charles Sebe was incarcerated. He in turn instructed operatives under his command to obtain such information. This was done and the 2nd Applicant relayed the information, including photographs of the prison, to one Joe Verster of the Special Forces of the South African Army.
During the night of 25/26 September 1986 Charles Sebe was freed from the Middledrift Prison in an operation conducted by a special unit. He was then taken to safe sanctity in Transkei.
On 29 September 1987 Kwane Sebe and his second in command, one Ngwanya were abducted. The 2nd Applicant, gave instructions to policemen under his command to take up positions along a route in order to assist taking the abducted persons to Transkei. Both Kwane Sebe and Ngwanya were released two days after this abduction in accordance with a court order.
The training of XRM members took place in Transkei and a campaign to discredit Lennox Sebe and his government was undertaken. The method used in such campaign included the dropping of pamphlets from an aeroplane.
On 10 November 1986 a meeting was held at Msikaba, Transkei. Those persons at the meeting included the 1st Applicant, Namba Sebe, Charles Sebe and General Reid-Daly of the Transkei Defence Force. The 2nd Applicant did not attend the meeting but was represented thereat by his colleague, Major van der Merwe. At that meeting it was, inter alia, decided that Namba Sebe should go into hiding. It was also reiterated that Lennox Sebe should be "removed" and that his son Kwane be rooted out and supporters of the Sebe regime be removed from office. The 1st Applicant testified that it was stresses at this meeting that South Africa would only supply support and that Transkei would be responsible for the removal of Lennox Sebe.
The 1st Applicant states that during or about December 1986 he received verbal instructions from General Liebenberg that Eastern Province Command should no longer participate in Katzen. The 1st Applicant was thereafter, with effect from 1 January 1987, promoted and transferred to the Witwatersrand Command. He states that the SADF did not participate in the failed raid on the home of Lennox Sebe which took place on 19 February 1987 and that such raid was not a part of Katzen, notwithstanding the fact that Katzen contemplated the removal of Lennox Sebe. He says that after such raid Katzen died a natural death. The SAP withdrew their participation after the meeting of 10 November 1986.
After considering the evidence and documentation before us, including the affidavit that was submitted by General R. Reid-Daly after the hearing of this matter, we are satisfied that the actions of the 1st Applicant in the formulation of Plan Katzen and in the partial execution of such plan were acts associated with a political objective as contemplated by Section 20 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). He had received direct instructions from the highest sources to expeditiously stabilise the region under his command. He, in an endeavour to comply with such instructions conceived and formulated the plan. There is nothing whatsoever on record to suggest that he acted out of malice, ill-will or spite or for personal gain in so doing. The plan was submitted by him to his senior officers and, from there, other departments became involved and the implementation of its first phase was sanctioned.
Plan Katzen was highly ambitious and far-reaching. While it may be described as being diabolical and misconceived we accept the 1st Applicant's averment that its creation was an attempt to combat the revolution that was taking place in the region under his command. It is clear that the execution of the plan would involve the commission of various unlawful acts and crimes including, for example, aiding and abetting escape from lawful detention, the abduction of persons, covert training of persons for a resistance movement, conspiracy to overthrow a government, etc. The plan was a desperate measure to counter the ever increasing intensity of the revolution.
We are also satisfied that the 2nd Applicant was acting under instruction in the performance of his duties when he assisted with the execution of phase one of the plan by gathering and supplying information and by rendering assistance after the abduction of Kwane Sebe and the said Ngwanya. He too, was in our view, acting with a political objective as contemplated by the Act.
We are also satisfied that both Applicants have made a full disclosure of the relevant facts and that their applications comply with the requirements of the Act.
In the circumstances the applications succeed and the Applicants are GRANTED amnesty in respect of all criminal and delictual acts committed by them arising out of their involvement in Plan Katzen.
DATED at CAPE TOWN this day of 2000.
JUDGE S M MILLER
ADV. N SANDI
MR J B SIBANYONI AC/2000/038
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.
T.A. MZOBE APPLICANT
(AM 4020/96)
DECISION
The applicant applies for amnesty in terms of Section 18 of Act 34 of 1995 in respect of the following offences for which he was sentenced to 15 years imprisonment:
a. the murder of Samuel Njabulo Ndlovela at Boboyi in the district of Port Shepstone on the 24th April 1993;
b. the murder of Brian John Bazley at the same place and on the same date as mentioned in (a) above;
c. the attempted murder of Mfanele Zulu, Dumisani Wonderboy Yinda and Mbulelo Patrick Sebenza on the same date and place.
The applicant was a card carrying member of the Inkatha Freedom Party (IFP) and resided at Boboyi in the district of Port Shepstone in KwaZulu Natal. He testified that there was violence (conflict) between the IFP and the ANC in the area since the mid 80's; that the people of Boboyi knew each other's political affiliation because they grew up together and attended the same school.
He further gave evidence that on Saturday 24th April 1993 he boarded a taxi at Kwakanjaza to the Port Shepstone taxi rank intending to proceed to Durban, that he could not continue with his journey, because at Port Shepstone taxi rank he met a group of ANC members who swore at him calling him "Uklova" which term is derogatory to IFP members; that he abandoned his journey and returned to Boboyi; and that the group of ANC members boarded another taxi and followed him.
Applicant alighted at Boboyi and walked towards his home. When he was near the Sister Joan's School he heard people swearing at him. Looking back he noticed that it was the same group he met at Port Shepstone. He decided to fight the group.
He testified that he was far from the group when they swore at him. The group did realise that he would pretend as if he was walking away. Instead he used the trees and the school as cover. He grabbed a young boy and using him as a shield walked up to the group, initially spoke to them and then attacked them by shooting at them. The applicant conceded that the incident took place under a tree and did not dispute the medical evidence that Brian was shot whilst in a sitting position. He was, in our opinion, an unsatisfactory and unreliable witness.
He shot the two men because he assumed they were part of the group who had sworn at him in town, although he did not recognise them as such. He knew then and under cross-examination admitted that he had lost his temper; he also admitted that both the deceased were unarmed.
The Evidence Leader called Mbulelo Patrick Sebenza to give evidence. He testified that on the day in question he and Brian Bazley passed the applicant's home and went to town, Port Shepstone. The applicant found them at the butchery where they braaied meat and talked. There was no quarrel or conflict between them. They then parted ways. While the witness and Brian boarded a taxi at Port Shepstone to return to KwaKanjaza, they met and were accompanied by Mr Ndovela and Mr Mtango Zulu. On arrival at KwaKanjaza they bought meat and went to a girlfriend's room. They requested someone to cook the meat for them. They went outside the room and sat under a tree in the shade because it was hot on that day. Shantini Zulu and others joined them.
Mr Sebenza further testified that whilst they were waiting for the food to cook, the applicant, armed with a gun, arrived holding a young boy by the arm and said:
"Hey, you sons of bitches, do you know this boy?"
Ndovela looked at the applicant who asked what Ndovela was looking at and then he started firing. Mr Sebenza also testified that there was no conflict between Brian and him on the one hand and the applicant on the other hand. He added that he was a member of the ANC but that Brian was not a member of any political organisation.
Applicant's version is totally contradicted by Mr Sebenza's evidence. It is difficult to understand applicant's reason for his conduct on the day in question. The Committee has been told about the conflict which existed at the material time between the ANC and the IFP in the area but that was no open war or violence. Applicant testified about ANC areas being distinct from IFP areas. Mr Sebenza stated that there was no demarcation or no-go areas and that he walked past the applicant's house that morning.
The applicant's evidence is that a group of ANC members swore at him in town and threatened to kill him; that the same group followed him to Boboyi. He lost his temper and decided to attack. However, he is unable to identify any person at Boboyi as having been present in town.
Having regard to the evidence tendered before us, and in the light of Mr Sebenza's testimony we are not satisfied that the applicant has made full disclosure of all material facts and furthermore that the acts applied for are acts associated with a political objective. Even if we had accepted his version his reaction to the alleged insults was grossly disproportionate.
The applicant's application for amnesty is therefore REFUSED.
SIGNED AT CAPE TOWN ON THIS DAY OF 2000.
JUDGE A WILSON
MR I LAX
MR J B SIBANYONI AC/2000/039
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.
ANDREW RUSSELL CAVILL TAYLOR FIRST APPLICANT
(AM 4077/96)
JEREMIAS JACOBUS BROOKS SECOND APPLICANT
(AM 4078/96)
HENDRIK JOHANNES PETRUS BOTHA THIRD APPLICANT
(AM 4117/96)
JACOBUS ADRIAAN VORSTER FOURTH APPLICANT
(AM 4390/96)
LAURENCE GERALD WASSERMAN FIFTH APPLICANT
(AM 4508/96)
FRANS HENDRIK S LABUSCHAGNE SIXTH APPLICANT
(AM 5005/97)
ANTON EUGENE VERWEY SEVENTH APPLICANT
(AM5018/97)
DECISION
The applicants apply for amnesty for their participation in the kidnapping and death of an ANC political activist, Mbova Mzimela, also known as, Dion Cele in July 1988. Cele was trained MK soldier who worked in the Manzini area in Swaziland. The South African Security police had information that he was part of the so-called "Natal Machinery" of the ANC responsible for smuggling arms into the country as well as explosions inside the country. Information had been received by the applicant, Vorster, that Cele would be interested in working with the Security Police. This information was obtained from one Goodwill Sikhakane, an informant of the Police who has since died. Taylor (hereinafter referred to as the first applicant, now also deceased) was in command of the operation in terms of which Cele would be abducted, acquired as an informant and then returned to Swaziland. The operation went wrong in that Cele was not prepared to co-operate. Fearing that releasing Cele would cause embarrassment to the then government and lead to the exposure and possible death of Sikhakane at the hands of the ANC, it was decided by the first, fourth and fifth applicants that Cele be eliminated. He was consequently shot and killed and buried in a grave on the farm Elandskop near Pietermaritzburg.
The applications were not opposed by the relatives of the victims who were present at the hearing.
The applicants, with the exception of the first applicant who passed away after submission of his application, all testified at the hearing. The sixth applicant Labuschagne only testified some days after his co-applicants as a result of problems experienced in regard to his legal representation. His evidence will, however, be dealt with as part of this hearing. The Committee is of the opinion that in the absence of evidence of the first applicant is not competent to pronounce on the application of the first applicant despite the fact that this may have certain implications for his deceased estate or heirs.
In addition to the oral evidence of the other applicants documentation relating to the political background in KwaZulu Natal at the time of the incident, was placed before the Committee the correctness of which was confirmed in evidence by the third applicant, Botha. Of particular relevance for this hearing was the evidence also placed before the Amnesty Committee in the application of Brig. J H Cronje and cited in that decision. The relevant section reads as follows:
"According to the evidence before the Committee the police found it impossible to counter the onslaught by using customary policing methods. An espionage network was set up, the liberation movements were infiltrated, informers were used, so-called terrorists were captured and turned into informers or even became members of the security police as so-called Askaris."
The above cited paragraph succinctly sums up the background of the matter before us. The applicants rely on section 20(2)(b) of the Promotion of National Unity and Reconciliation Act, No 34 of 1995, in that they were acting within their authorization as members of the Security Forces. The fact that the order given by Taylor was illegal is neither here nor there. It has been accepted in other matters dealt with by the Amnesty Committee, more particularly the Khotso House amnesty decision, that an act, omission or offence committed by policemen will be regarded as an act, omission or offence within their express or implied authority, if committed in the execution of the functions for which they were appointed, or in the affairs of or the business of the master, or provided that the servant is doing his master's work or pursuing his master's ends." This Committee has no reason to deviate from the above approach.
Each applicant in his evidence explained the extent of his participation in the operation and the Committee is satisfied that they have made a full disclosure of their respective involvement in the abduction and elimination of Cele.
In the execution of the operation some of the applicants had illegally entered Swaziland and part of the offences were committed in Swaziland. The question was raised in argument whether this does in any way present an obstacle in granting amnesty to the applicants.
Briefly, the participation of the applicants can be summarised as follows:
The first applicant, Taylor was in charge of the operation and he was the one who ordered the elimination of Cele.
The second applicant, Brooks was only a police constable at the time. He accompanied Taylor to the border where Cele was brought into South Africa and also to the farm near Amsterdam where Cele was questioned and the farm at Elandskop where he was shot and buried. Brooks returned to his office in Pietermaritzburg before the killing of Cele took place and was never directly involved in the questioning or actual killing of the victim.
The fourth, sixth and seventh applicants Vorster, Labuschagne and Verwey crossed the border into Swaziland ready to assist in the operation. They were in separate vehicles to provide back up to Wasserman and Botha in the combi in which Cele was abducted and which was driven by the informant Sikhakane. They all exited Swaziland illegally after having followed a route indicated by Labuschagne and Verwey whose sole function was to render assistance in this regard on account of their intimate knowledge of the area. They later returned to their station in Middelburg, Transvaal soon after this part of the operation had been completed. At the farm of the Department of Forestry near Amsterdam, Cele was questioned by Botha, Vorster and Taylor, who were also the ones to interrogate him at the farm Elandskop near Pietermaritzburg where he was killed.
The fifth applicant, Wasserman, admitted to having questioned Cele and to having assaulted him at a time that he was alone with him. Wasserman testified that he shot Cele on the orders of Taylor with an unlicensed Makarov pistol which he had obtained from Taylor.
There was nothing to gainsay the evidence of the applicants and nothing so inherently improbable so as to merit any finding that the applicants had not made a full disclosure of all relevant facts relating to the offences for which they are seeking amnesty. The common law wife of the informant, the late Sikhakane, in her testimony sought to show them some aspects of the evidence relating to the abduction were untrue. Her evidence was however mostly based on heresay and no evidential value of substance could be attached to it.
The sister of Dion Cele, also testified and the Committee wishes to record its appreciation for the conciliatory spirit in which she testified. She noted the fact that the applicant Wasserman had expressed a deep sadness to the family for what had happened and she also thanked the applicants for having pointed out the place where Cele was shot and thus having made it possible for the family to afford him a decent burial.
In the light of the above the Committee finds that the applicants have complied with all the requirements for amnesty and accordingly amnesty is GRANTED to the following applicants, namely:
1. JEREMIAS JACOBUS BROOKS for the abduction of Mbova Mzimela (also known as Dion Cele) from Swaziland in or about July 1989;
2. HENDRICK JOHANNES PETRUS BOTHA for:
2.1 the abduction of Mbova Mzimela (also known as Dion Cele) from Swaziland in or about July 1989;
2.2 the unlawful arrest and/or deprivation of liberty of the said Mzimela in or about July 1989;
2.3 contravention of the Border Control Regulations at the border of Swaziland and South Africa in or about July 1989;
2.4 defeating the ends of justice in respect of the murder of the said Mzimela in or about July 1989;
3. JACOBUS ADRIAAN VORSTER for:
3.1 the abduction of Mbova Mzimela (also known as Dion Cele) from Swaziland in or about July 1989;
3.2 the unlawful arrest and/or deprivation of liberty of the said Mzimela in or about July 1989;
3.3 the murder of the said Mzimela at the farm Elandskop near Pietermaritzburg in or about July 1989;
3.4 contravention of the Border Control Regulations at the border of Swaziland and South Africa in or about July 1989;
4. LAURENCE GERALD WASSERMAN for:
4.1 the abduction of Mbova Mzimela (also known as Dion Cele) from Swaziland in or about July 1989;
4.2 the unlawful arrest and/or deprivation of liberty of the said Mzimela in or about July 1989;
4.3 the murder of the said Mzimela at the farm Elandskop near Pietermaritzburg in or about July 1989;
4.4 the assault on the said Mzimela at a farm near Amsterdam in or about July 1998;
3.4 contravention of the Border Control Regulations at the border of Swaziland and South Africa in or about July 1989; 5. FRANS HENDRIK LABUSCHAGNE for:
5.1 the abduction of Mbova Mzimela (also known as Dion Cele) from Swaziland in or about July 1989;
5.2 contravention of the Border Control Regulations at the border of Swaziland and South Africa in or about July 1989;
6. ANTON EUGENE VERWEY for:
6.1 the abduction of Mbova Mzimela (also known as Dion Cele) from Swaziland in or about July 1989;
6.2 contravention of the Border Control Regulations at the border of Swaziland and South Africa in or about July 1989.
In our opinion the next-of-kin of the deceased, are victims in relation to the aforesaid acts for which amnesty is hereby granted and they are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
Dated at on this day of
Signed:
MALL J
ADV F J BOSMAN
I LAX AC/2000/040
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.
EUGENE ALEXANDER DE KOCK FIRST APPLICANT
(AM 0066/96)
ANDRIES JOHANNES VAN HEERDEN SECOND APPLICANT
(AM 3763/96)
DECISION
The above applicants apply for Amnesty for the bombing in October 1989 of the house of Dr Bulbulia at Bakerton, Springs.
Brigadier Andries Zirk Gouws, then head of the Springs Security Branch, ordered De Kock to bomb the house of Dr Bulbulia, apparently an ANC activist on the East Rand, in order to intimidate him. De Kock in turn obtained clearance from his superiors and instructed Van Heerden to assist him.
One night in October 1989 they proceeded with two 400g TNT bombs to the house of Dr Bulbulia and set off the bombs. There was no intention to injure or kill anyone and slight damage was caused to the house.
Brigadier Gouws (AM4141/96) applied for Amnesty for the same incident and was GRANTED Amnesty on the 1st June 1998.
The Committee is satisfied that the above applicants, acting under instructions, committed these acts within the context of the conflicts of the past, acted with a political objective as envisaged in the Act and made a full disclosure of all material facts pertaining to the incident.
Both the above-named applicants are therefore GRANTED amnesty for all acts associated with the bombing of the house of Dr Bulbulia in October 1989 in Bakerton, Springs, including offences related to the unlawful possession of explosives used in the incident.
Signed at Cape Town on this the 17th day of March 2000. AC/200/041
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.
TOM JABULANI MADLALA FIRST APPLICANT
(AM 7918/97)
FALAKHE PROFESSOR MADLALA SECOND APPLICANT
(AM 6454/97)
DECISION
Tom Jabulani Madlala (who is hereinafter referred to as the first applicant) was convicted on four counts of murder on 8th August 1991. He was sentenced to fifteen years imprisonment on each count, but the sentences were ordered to run concurrently.
It is appropriate to refer briefly to the background against which these offences were committed. The applicant and members of his family lived among people, the majority of whom were either members or supporters of the Inkatha Freedom Party. Their Chief was Bhekisizwe Luthuli who was one of the leaders of the IFP in the area. The applicant's father was an Induna of Chief Luthuli and an executive member of the IFP in the area.
In 1984 and at a time when the applicant lived in KwaMadala he joined the youth league of the United Democratic Front. He soon attracted the attention of the Security Police and was arrested and interrogated on numerous occasions.
During 1989 he returned to Umthwalume where he was instrumental in forming a branch of the UDF and was elected Chairperson of the Youth League of the UDF. Chief Luthuli and the applicant's father were against the formation of the UDF in their area. Despite this the applicant continued his activities.
On 1st January 1990 a group of IFP members attempted to attack applicant's house but his comrades were able to prevent the attack. During February 1990 the area in which the applicant lived was attacked by the IFP on three occasions. In the course of these attacks, which were carried out in the presence of the police, some UDF members and some IFP members were killed and a number of houses were burnt down.
On the 13th of February 1990 the police raided the area and arrested the applicant and fifteen of his comrades on charges of public violence and attempted murder. After several appearances in court these charges were withdrawn.
On 24th March 1990 there was a further attack by IFP on the Mahwaqa and Mgangani villages, which were mainly occupied by UDF members and supporters. In the course of this attack five members of the UDF were gunned down and a number of men, women and children were wounded. On that occasion the applicant was not present but he received a report from eyewitnesses that the attackers were supported by the KwaZulu Police and members of the South African Police Stationed at Hibberdene and Port Shepstone.
The applicant received a report that IFP was planning another attack on the following day. To stave off that attack, the applicant gathered a number of his colleagues and provided them with arms and ammunition. To forestall another attack the applicant and his colleagues decided to attack their enemy.
It was against this background that the events of the 25th March 1990 occurred. In the course of the attack by the UDF members thirteen members of the IFP were killed.
In his application for amnesty applicant says that among those who were killed were Jabuliswa Thabethe, Nana Shinga and Thulani Gumede. The following day the residence of Mahwaqa and Njangweni were once again attacked by the IFP members and supporters. At least five members of the UDF were killed and several were injured. Twelve houses were burnt down and many people were evicted from their homes and their belongings were either destroyed or confiscated by the attackers.
No members of the IFP were arrested. However, it was the event of the 25th that lead to the charge and conviction of the applicant for the murder of four people.
Unfortunately the records of the criminal trial were no longer available as they had been destroyed. Apart from the three whose names are mentioned by the applicant, the name of the fourth victim is not known.
Mr Roshan Dehal, who appeared for the applicants, submitted on their behalf that there was overwhelming evidence that the offences which were committed by the applicant were committed in the course of the conflicts between the UDF- and the IFP and were associated with a political objective. He said that the applicant had satisfied the requirements of section 20(1) of the Act and that the applicant had made a full disclosure of the offences he committed.
Mr Harkoo who appeared for five of the dependants of the victims were present at the hearing, did not challenge the application.
On consideration of all the facts placed before the Committee we have come to the conclusion that the requirements of the Act have been satisfied by the applicant and he is accordingly GRANTED amnesty for the murder of Jabuliswa Thabethe, Nana Shinga, Thulani Gumede and one other person whose identity is unknown on the 25th March 1990.
The second applicant in this matter is Falakhe Professor Madlala, he is the younger brother of the first applicant. He said that he was also a member of the UDF but held no official position in the organisation. He admitted making common cause with his comrades in the attack on the 25th March 1990. According to him among those who died, were a female whose name was given as Mzelwa and one Geduga was injured.
He confirmed the evidence of the first applicant on the issue of the ongoing political conflict between the IFP and the UDF. The Committee is satisfied that he is entitled to amnesty for the offences committed by him on 25th March 1990.
The Amnesty Committee is of the opinion that the following persons are victims and are accordingly referred to the Committee on Reparation and Rehabilitation for its consideration in terms of Section 26 of the Act.
Nomusa Mso Hadebe
Gertrude Mana Majola
Samuel Fanyana Mzelemu
Albert Shozi
Ana Cele
Signed on this 27th day of March 2000.
MALL J
J.B. SIBANYONI
C.D. DE JAGER AC/2000/042
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.
PUMELELE GUMENGU FIRST APPLICANT
(AM 3610/96)
ARON TYANI SECOND APPLICANT
(AM 3786/96)
DECISION
1. INTRODUCTION
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). The matter relates to the attempted murder of Sithembele Zokwe ("the deceased") at or near the Transkeian Quarry at Ngolo Administrative Area, Umtata on 8 August 1987 and the eventual murder of the deceased at Cegcuwana Administrative Area, Butterworth on 11 January 1988.
Pumelele Gumengu applies for amnesty in respect of both these incidents, while Aron Tyali only applies for amnesty in respect of the murder. Both Applicants have, however, been charged with both offences and their trial is presently pending.
Applicants have both testified in support of the applications which are opposed by the next-of-kin of the deceased. Mr Mapoma, the leader of evidence, has presented the evidence of Vulindlela Christopher Shologu, a former member of the Transkeian police, who was present during the attempted murder of the deceased. No other evidence was tendered at the hearing.
The respective incidents will now be dealt with in turn.
2. ATTEMPTED MURDER
The evidence in this regard was briefly to the effect that Gumengu, who was a member of the Transkeian Security Police at the time, was engaged in clandestine operations against members of the liberation movements. He operated under the command of the late Captain Mfazwe, who ordered him during the period June/July 1987, to eliminate the deceased who was an enemy of the Transkeian State. The evidence is contradictory on the actual events.
According to the written application of Gumengu he noticed the deceased in Umtata on 8 August 1987 while driving in a vehicle with the witness Shologu and another police officer. The deceased was confronted and ordered to get into the vehicle with them, whereafter they drove to the outskirts of the city and stopped in the vicinity of the quarry. He ordered the deceased to get out of the vehicle and follow him.
After they had proceeded for a short distance, the deceased broke free and escaped. He fired two shots in the direction of the deceased who appeared to have fallen down. He returned to where his two colleagues were waiting and they left the scene.
The version of Shologu, however, casts the incident in a different light. He confirms that the police apprehended the deceased in the vicinity of the Royal Hotel in Umtata and drove to the quarry on the outskirts of the city after the deceased said that there were guns which he can point out. After the vehicle stopped, his other colleagues and the deceased got out of the car. Gumengu was the first to get out and was followed by the others. The deceased was approximately one pace away from Gumengu. He heard the deceased running away and saw Gumengu pursuing the deceased. After a while he heard gunfire. Gumengu returned to the vehicle and said that he shot the deceased who tried to take his gun. Gumengu never got out of the vehicle alone but was followed by the deceased and the other occupants of the vehicle. They all moved in the direction of the dynamite house.
Having considered the matter, we are not satisfied that Gumengu's version is truthful. Apart from the fact that his written application and testimony are contradictory, his version is, moreover, inherently improbable and directly contradicted by Shologu.
We are accordingly not satisfied that Gumengu has made a full disclosure of all relevant facts in regard to the attempted murder of the deceased as required by the Act.
In the circumstances the application of Pumelele Gumengu in respect of the attempted murder of Sithembele Zokwe on or about 8 August 1987 at or near Cegcuwana Administrative Area, Umtata is REFUSED.
3. MURDER
Both Applicants testified in respect of this incident. Their versions largely coincide and are to the effect that on the day in question, 11 January 1988, the deceased was arrested in Butterworth and after interrogation indicated that he had a number of handgrenades at home. The Applicants and some other members of the police took the deceased to his house to point out the handgrenades. The Applicants accompanied the deceased inside the house while the rest of the police guarded the premises. After the deceased pointed out a bedroom where the handgrenades were in, his hands were uncuffed to enable him to unlock the door with a key that was in his possession. This was done in order to avoid any possible booby traps that might have been set for the police. The deceased managed to lock himself inside this room while the Applicants were standing outside in the passage. After a while the deceased opened the door, armed with a handgrenade. Gumengu shouted a warning and dived for cover. He heard some gunshots followed by an explosion whereafter he left the house.
Tyani heard Gumengu's warning after the deceased opened the bedroom door and realised that the deceased intended to throw an handgrenade at them. He fired a number of shots at the deceased and left the house after the latter fell down.
Having carefully considered the evidence and all the other material placed before us, we are of the view that the version of the Applicants in regard to the shooting incident is so inherently improbable that it cannot be accepted as true. The version that the deceased, who was regarded as a highly trained and dangerous terrorist, was uncuffed to open the door and somehow slipped into a room which was expected to contain handgrenades, defy belief.
It is even less plausible that the deceased would subsequently show himself in the open doorway completely exposed to the Applicants whom the deceased must have known, were armed.
In view of the fact that the Applicants are facing prosecution on both incidents forming the subject matter of these applications, we deem it inappropriate to comment too widely on the quality of the evidence. We would simply state that we are not satisfied that the Applicants have made a full disclosure of all relevant facts in regard to this incident as required by the Act.
In any event on the version of the Applicants the deceased was shot in defending themselves against being attacked with a handgrenade. They were accordingly not engaged in eliminating the deceased in accordance with the orders of higher authority to dispose of enemies of the Transkeian State. Moreover, Gumengu took no part at all in the attack upon the deceased nor has he made out a case of association with the elimination of a political opponent in accordance with the provisions of Section 20(2)(g) of the Act.
We are accordingly not satisfied that the applications comply with the requirements of the Act and they are therefore REFUSED.
In our opinion the next-of-kin of the deceased is a victim in relation to the incident and is accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED at CAPE TOWN this 27th day of March 2000.
Judge D. POTGIETER
Judge S.M. MILLER
Mr J.B. SIBANYONI AC/2000/043
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.
MSHALAZA NICHOLAS MZELEMU APPLICANT
(AM 8071/97)
DECISION
The applicant applies for amnesty in respect of the murders of Thembekili Ncama Sikobi and Landiwe Sikobi which occurred on 19 October 1992 at Dlovinga in the Izingolweni area.
The applicant is a member and supporter of the Inkatha Freedom Party (the IFP). On New Years day 1991 his home in Nkulu, which is close to Dlovinga, was attacked and burnt to the ground by supporters of the African National Congress, (the ANC). His grandmother was killed in the attack.
He was told that two brothers, the Sikobi brothers, were amongst the group that attacked his house.
On 19 October 1992 the applicant was told by Ntshebe Shange that one Sipho Ngcobo, the brother of the local IFP leader, wanted to see him as the Sikobi brothers were at their home in Dlovinga. The applicant went to Sipho Ngcobo. He obtained ammunition for his 9mm pistol from the said Ngcobo. He then proceeded to the Sikobi's house in Dlovinga in the company of the said Shonge and one Gejamapoint Mbulu, both of whom were also armed with firearms.
The applicant testified that he proceeded to the Sikobi house with the specific intention of killing the Sikobi brothers who attacked his house. He also stated that he went there on his own volition and that he was not ordered to do so by Sipho Ngcobo or anybody else.
When they arrived at the Sikobi residence they met Lindi Sikobi, the younger brother of the two brothers they were looking for. The applicant took hold of Lindi and asked him where his brothers were. He responded by saying they were in Durban. They did not believe him and started to search the premises which consisted of more than one free-standing hut. The applicant states that his two companions entered a hut when he was proceeding towards the kitchen hut with Lindi. He heard gun shots and then went into the hut where his companions were. In the hut he saw two elderly women who had been shot. They were both dead. The applicant asked his companions why they killed the women. They responded by saying they did so because that is what members of the ANC do when they attack IFP homes. Lindi broke away from the applicant and ran away. The applicant tried to stop him by shooting at him, but Lindi managed to escape.
The applicant stated that it was never his intention that the women be killed and he expressed remorse therefor.
It is our view that the murder of the two women was a needless and wanton act of destruction. The only reason why they were killed was because they happened to be present at the premises when the applicant and his companions arrived there. There was no plan to kill anyone other than the two Sikobi brothers who allegedly attacked the applicant's home.
The applicant, in his version given at the hearing of this matter, disassociated himself from the killing of the two women by stating that he was not present when they were killed, that he never had the intention of killing them and that he was surprised and dismayed that they were killed.
After taking all the circumstances into account, we are not satisfied that the applicant, in relation to the killing of the two women, was acting on behalf of or in support of the IFP bona fide in furtherance of a political struggle. We are also not satisfied on the evidence before us that the two deceased women can be said to have been political opponents of the applicant.
We are accordingly of the view that the killing of the women was not an act associated with a political objective as contemplated by the provision of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995.
In the result the applicant's application for amnesty is REFUSED.
SIGNED AT CAPE TOWN THIS THE 28th DAY OF MARCH 2000.
JUDGE S MILLER
JUDGE R PILLAY
MR I LAX AC/2000/044
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.
JONATHAN TLHOLEBE MODISANE FIRST APPLICANT
(AM 7214/97)
SOLOMON NETSI MOGALE SECOND APPLICANT
(AM 7221/97)
DECISION
The applicants apply for amnesty in respect of the roles they played in the attempted coup d'état which took place in Bophuthatswana on 10 February 1988. At that time Jonathan Tlholebe Modisane (the 1st applicant) and Solomon Netsi Mogale (the 2nd applicant) were both privates in the Bophuthatswana Defence Force.
The applicants testified that on the 09th February 1988 their unit Commander, one Sergeant Major Timothy Phiri, informed them that they would soon be involved in an operation to overthrow the Bophuthatswana government. The said Phiri gave various reasons for the overthrow of the government including mal-administration, corruption, the forced removals of chiefs and their tribes from tribal land, nepotism in senior appointments in the Defence Force and the restraint on normal political activity.
At approximately 02h00 on 10 February 1988 the 1st Applicant, who was a driver, was ordered by the said Phiri to proceed to the armaments storage depot and collect firearms and ammunition. This he did. Thereafter he, the 2nd Applicant and approximately 150 other soldiers were ordered to proceed to the Parliament complex which also contained a housing estate for cabinet ministers. All the soldiers who proceeded to the complex were armed and in uniform.
At the complex the 1st Applicant was ordered to remain with his truck which contained extra weaponry. The others were divided into groups and each group was ordered to go to a particular cabinet minister's house and on the sound of a whistle to enter the house and capture the minister.
The 2nd Applicant was ordered to go to the house of a Mr Ntsime. On the sound of the whistle he fired a number of shots at the lock of one of the doors of the house. The door did not open and entry was gained to the house by other members of his group through another door. Mr Ntsime was not present at his house that night but his wife, children and certain family friends who were there were rounded up and taken to a place near the President's house. The President and certain other cabinet ministers were captured in other houses and taken to the nearby sports stadium.
Later that day members of the South African Defence Force intervened and the President and his colleagues were released and the attempted coup d'état was brought to an end.
Neither of the applicants were involved at the incident which took place at the sports stadium nor were they present at the house in which two women were shot and killed.
The applicants were arrested and were charged in the Bophuthatswana Supreme Court with high treason. They were both convicted and sentenced to a term of 8 years imprisonment. They were both unconditionally released from prison during 1991.
Both of the applicants testified at the hearing of this matter that they willingly participated in the attempt to overthrow the government.
Their applications for amnesty are not opposed. Section 20(1) of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 (the Act) provides that amnesty shall be granted if the Committee is satisfied that the application complies with the requirements of the Act, the offence for which the application relates is an act associated with a political objective committed in the course of the conflicts of the past and the applicant has made a full disclosure of all relevant facts.
The applications of the applicants do comply with the requirements of the Act in that they have been duly completed and attested to and were timeously submitted.
We are also satisfied that the offence to which the application relates is an act associated with a political objective as contemplated by the Act.
Section 20(2)(e) of the Act defines "act associated with a political objective" as being any act which constitutes an offence or delict which is associated with a political objective and which was advised, planned, directed commanded, ordered or committed by any person in the performance of the coup d'état to take over the government of any former state, or in any attempt thereto. It is clear from the evidence before us that the attempted coup d'état was politically driven and that the applicants were willing participants therein. The applicants also at all times acted in response to orders given to them and in this regard reference is made to section 20(3)(e) of the Act.
We are also satisfied that the applicants have made a full disclosure of all relevant facts relating to the part they played in the incident.
In the circumstances the applications succeed and the applicants are GRANTED amnesty in respect of acts performed by them in the attempted coup d'état in Bophuthatswana on 10 February 1988 which led to them being convicted of high treason and sentenced to undergo a term of imprisonment.
We are of the opinion that all occupants of ministerial housed at the government housing complex in Mmabatho on the night of 09/10 February 1988 who suffered loss damage or injury as a result of the attempted coup d'état are victims and in this regard this matter is referred to the Committee on Reparations in terms of section 22 of the Act.
Signed at Cape Town on this 29th day of March 2000.
JUDGE S MILLER
ADVOCATE F BOSMAN
ADVOCATE S SIGODI AC/2000/045
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.
LUSINDISO POYO FIRST APPLICANT
(AM 7192/97)
TEMPLETON ZAMEKILE PATO SECOND APPLICANT
(AM 5865/97)
FUNDISILE GULENI THIRD APPLICANT
(AM 5866/97)
DUMISA MDLULWA FOURTH APPLICANT
(AM 6654/97)
MFANELO DAN MATSHAYA FIFTH APPLICANT
(AM 7016/97)
PUMELELE CIVILIAN HERMANS SIXTH APPLICANT
(AM 7581/97)
DECISION
The applications relate to three separate incidents which occurred in the vicinity of Port St. Johns in the then Transkei during 1994. Different configurations of Applicants participated in the different incidents and for the sake of convenience the applications were heard jointly.
At the commencement of the hearing the application of PUMELELE CIVILIAN HERMANS was withdrawn.
The incidents arose from a violent political conflict in the area in question involving the African National Congress ("ANC") and the Pan Africanist Congress ("PAC"). Umkhonto weSizwe ("MK"), the military wing of the ANC, and the Azanian Peoples Liberation Army ("APLA"), the military wing of the PAC, were also drawn into the conflict. All of the Applicants were members of the ANC and some participated in the activities of the Self-Defence Units ("SDU") established by the ANC in the area in question. Some of the Applicants had undergone military training under the auspices of MK. We will now proceed to deal with the individual incidents separately.
KILLING OF MAPIPA
This incident happened on or about 23 March 1994 and it involved only one of the Applicants, namely FUNDISILE GULENI. Guleni was the general secretary of the Port St. Johns ANC branch as well as the chairperson of the tripartite alliance between the ANC, the South African Communist Party ("SACP") and the Congress of South African Trade Unions ("Cosatu") in the area. He was also a member of the Port St.
Johns' SDU and had received military training from members of MK during 1987. On the day in question the ANC was preparing fro an election campaign which was to be held the following day in Madakeni Location near Port St. Johns. The local MK commander, one Mzwandile, reported that the APLA unit of Mr Mapipa had arrived in Port St. Johns and was preparing to attack the ANC. Later the afternoon Mzwandile reported again that he had seen Mr Mapipa and his unit driving out of town. A number of ANC combatants including Guleni and Mzwandile pursued the Apla unit in a vehicle. The ANC group was armed with a R4 rifle, an Uzzi and a G3 machine gun.
On the way Mzwandile identified the vehicle and the group opened fire on it. The vehicle came to a standstill and Guleni's group approached the vehicle. Mr Mapipa and another male person were found inside the car. The unknown male appeared to be dead. Mr Mapipa was shot and killed by Guleni's group. The group found a shotgun and some ammunition inside the vehicle which they confiscated.
It later transpired that the unknown male person survived the attack and was taken to the hospital where he eventually recovered.
Guleni was subsequently charged for the incident in the Umtata High Court, which trial is presently pending.
We are satisfied that the incident resulted from the political conflict involving the ANC and the PAC at Port St. Johns at the time. Guleni was clearly acting within his capacity as a member of the ANC as well as the SDU in the area in participating in the attack.
In all the circumstances we are satisfied that the application complies with all of the requirements of the Act and amnesty is accordingly GRANTED to FUNDISILE GULENI in respect of the following offences committed on or about 23 March 1994 at or near Port St. Johns:
1. The murder of Mr Mapipa;
2. Attempted murder of an unknown male PAC and APLA member;
3. Unlawful possession of firearms including a R4 rifle, an Uzzi and G3 machine guns;
4. Unlawful possession of ammunition;
5. Malicious injury to property in respect of the vehicle of Mr Mapipa.
SHOOT-OUT INVOLVING APLA ATTACKERS
This incident happened on or about 28 March 1994 at or near the high school in Port St. Johns. On the day in question the ANC was holding a workshop for its voting agents with a view to preparing them for the coming general election. The facilities at the high school were perfectly suited for this purpose and the workshop was accordingly held there.
At some point during the course of the day certain persons, who were believed to be members of APLA, started shooting at the school in an apparent attempt to intimidate the participants in the workshop and to disrupt the proceedings. The firing was coming from the direction of the home of a senior PAC member, one Mr Mposelwa, who lived directly opposite the high school premises. Mr Mposelwa was centrally involved in the political conflict in the area.
After the workshop participants unsuccessfully attempted to enlist the assistance of the police, who appeared to have been reluctant to engage the APLA forces, reinforces were summoned from the ANC security department in Umtata. After the ANC reinforcements arrived on the scene, a prolonged shoot out ensued with the attackers until the ANC security personnel eventually managed to evacuate the high school.
Although all of the members who participated on the ANC's side in the shoot out made use of heavy calibre firearms as well as automatic rifles, it is not clear whether any persons were killed or injured on the APLA side during the incident. The Applicants who participated in the shoot out were FUNDISILE GULENI who was armed with a R4 rifle, MAFANELO DAN MATSHAYA who was a member of the ANC security department and was armed with an AK47 assault rifle, DUMISA MDLULWA also a member of the ANC Security department who was armed with an Uzzi submachine gun and TEMPLETON ZAMEKILE PATO who was an ANC member participating in the election's workshop who used an Uzzi submachine gun which he picked up after it was dropped by one of the APLA attackers during the shoot out.
Having carefully considered the matter, we are satisfied that the shoot-out ensued as a result of the ongoing political violence involving the ANC and the PAC in the Port St. Johns area and that the conduct of the Applicants involved in the shoot-out, was in furtherance of the political struggle against the PAC and APLA at the time.
In the circumstances amnesty is accordingly GRANTED to the abovenamed Applicants who were involved in the shoot out on or about 28 March 1994 at or near Port St. Johns in respect of the following offences:
1. Unlawful possession of firearms, including an AK47 rifle, two Uzzi submachine guns and a R4 rifle;
2. Unlawful possession of ammunition;
3. Any further offence which arises from the conduct of the Applicants during the course of the incident in question.
KILLING OF APLA MEMBERS
This incident happened on or about 20 April 1994 shortly before the first democratic elections in the country.
On the day in question an ANC mass rally was organized at Majola administrative area in the vicinity of Port St. Johns. The rally was to be addressed by General Bantu Holomisa. At about the scheduled time for the rally to commence, information was received by the ANC cadres that there were a number of APLA members on their way to disrupt the rally. A group of the ANC cadres travelled with a van in the direction of the venue for the rally and on the way they met six persons who turned out to be members of APLA. They proceeded to the venue of the rally where they approached some of their leadership including MK commander Mzwandile and informed them about the people whom they had picked up. Some members of the leadership as well as some of the ANC marshals joined the group and the APLA members were taken to the nearby home of one of the ANC leaders where they were questioned. They gave contradictory explanations about their movements which strengthened the suspicions of the ANC members that they had come to attack the rally goers. They were then removed to a more secluded spot for more thorough interrogation.
In the course of the further interrogation one of the ANC group fired at the APLA members. This caused some confusion in the midst of the ANC group and there was some uncertainty as to what should happen to their captives. After some discussions, it was decided that all of the APLA members should be killed. They were all eventually shot, but two of them survived the attack and managed to escape. The rest of the bodies were buried in a mass grave. The incident was reported to the ANC leadership later that same night.
Applicants LUSINDISO POYO, FUNDISILE GULENI and TEMPLETON ZAMEKILE PATO were involved in this incident. Their applications were opposed on behalf of some of the next-of-kin of the deceased but no evidence was tendered in support of such opposition.
In assessing the matter, we are mindful of the criticisms of the applications that were raised on behalf of the next-of-kin of the deceased in opposing the applications. However, having carefully considered the matter we are satisfied that the attack upon the deceased and the surviving APLA members resulted from the general situation of conflict involving the ANC and the PAC in the area. Although no explicit decision was taken beforehand to eliminate the APLA members, it is clear that this was within the contemplation of the ANC members. This is particularly so in view of the fact that the group of ANC members armed themselves with, amongst other things, firearms. Members of the ANC leadership were involved in the incident and they must have been aware of the reasonable possibility that the captured APLA members might be killed. Although the participation of POYO was limited to keeping watch, he was armed with a shotgun and was clearly equally liable for the deaths. In all the circumstances, we are satisfied that the incident constitutes an act associated with a political objective as envisaged in the Act. We are moreover, satisfied that the Applicants have made a full disclosure of all relevant facts in regard to the incident.
In the circumstances amnesty is GRANTED to LUSINDISO POYO, FUNDISILE GULENI and TEMPLETON ZAMEKILE PATO in respect of the following offences which occurred on or about 20 April 1994 at or near Port St. Johns:
1. The murder of NYAMEKO MAPEKULA, DAVID MVIMBI, EPHRAIM MOHAPE alias MZWANELE MATHIKWE and FALITENJWA RASTA NKANYEZI;
2. Attempted murder of MICHAEL RASMENI;
3. Unlawful possession of various firearms including R4 rifles and shotguns;
4. Unlawful possession of ammunition;
5. Any other offences resulting from the incident in question.
In our opinion all of the next-of-kin of the deceased as well as the other victims identified in this decision are victims in relation to the particular incident for which amnesty has been granted and are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED at CAPE TOWN this 3rd day of April 2000.
Judge R. PILLAY
Judge D. POTGIETER
Mr J.B. SIBANYONI AC/2000/046
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.
PUSELETSO JULIA SKOSANA APPLICANT
(AM 5486/97)
DECISION
The Applicant applies for amnesty in respect of an attack she launched alone against Duduza hostel during 1993. She threw a handgrenade into the building.
There was political conflict between the ANC and the IFP around 1993. At that time she was an SDU commander and head of intelligence. The political objective she intended to achieve was to defend the community which was under attack by the hostel dwellers who were IFP members.
After thorough investigations, which included a visit to the local police station at Duduza, it was found that no person was injured nor killed and no damage to property was established. The hostel had been evacuated prior to the attack.
After careful consideration, the Committee accepts the evidence and information placed before it by both the Applicant and the TRC's investigators.
In the circumstances we are satisfied that the attack was an act associated with a political objective in terms of the criteria set out in the provisions of Section 20 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995. The Applicant has complied with all the requirements of the Act relating to the technical aspect thereof and the issue of full disclosure.
The Applicant is therefore GRANTED amnesty in respect of:
1. Attempted malicious damage to the Duduza hostel during 1993;
2. Illegal possession of a handgrenade at the time and place referred to above;
3. Any offence or delict arising directly from the incident in question.
DATED at CAPE TOWN this 5th day of April 2000. Signed: AC/2000/047
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.
NHLANHLA DUNCAN MAHLANGU APPLICANT
(AM 6045/97)
DECISION
The applicant was at all material times hereto, a member of the African National Congress (the ANC) and Umkhonto weSizwe (MK).
On or about 15th June 1977 he and two other members of MK, namely, Solomon Mahlangu and Monty Motlaung proceeded to the Diagonal Street taxi rank in Johannesburg. They were armed with firearms and handgrenades and it was their intention to catch a taxi to Soweto where they were, in the words of the applicant, "to engage in acts of sabotage on economic targets as well as symbols of apartheid and to attack the police who were in defence of apartheid".
When at the Diagonal Street taxi rank they were approached by a policeman who had been following them. They scattered. Solomon Mahlangu and Monty Motlaung ran in one direction and the applicant in the other. The applicant successfully eluded the police and was not arrested. Solomon Mahlangu and Monty Motlaung took refuge in the John Orr's warehouse at Gogh Street where a skirmish broke out and shots were fired. Two persons were killed and three, including Monty Motlaung were injured in the shooting. The two deceased persons and the two other injured persons were all civilians. Both Solomon Mahlangu and Monty Motlaung were arrested.
Solomon Mahlangu was subsequently tried and sentenced to death. He was executed on 7th April 1979. Monty Motlaung was declared unfit to stand trial because he suffered brain damage apparently as a result of police brutality. He was declared a State President's patient.
After the incident the applicant went abroad where he actively participated in a campaign which was undertaken for the release of Solomon Mahlangu and Monty Motlaung. He states that he featured prominently in media interviews and also in a documentary film in which he took full responsibility for the Gogh street incident "with the hope that eventually blame would not be on my comrades".
The incident which took place in the John Orr's warehouse at Gogh Street was neither planned nor performed in execution of an order. It was a case of soldiers using their own initiative when confronted with an unexpected situation. They acted on the spur of the moment and in reaction to the circumstances they found themselves in.
It was not the intention of the unit to attack the John Orr's warehouse or to kill or injure civilians. While we are satisfied, on the papers before us, that the action of Solomon Mahlangu and Monty Motlaung were acts associated with a political objective committed in the cause of the conflicts of the past as contemplated by the provisions of section 20 of the Promotion of National Unity and Reconciliation Act, No34 of 1995, (the Act), we are of the view that no liability or responsibility for their actions can be ascribed to the applicant. The incident at the warehouse, which has been described by the ANC in its further submissions to the Truth and Reconciliation Commission on 12th May 1997 as an "unplanned action/skirmish with SAP", was not part of the unit's mission to perform acts of sabotage in Soweto. When the unit was prevented from embarking on its mission and its members scattered when fleeing from the police, each one of them was on his own and, as a trained cadre, had to do what he saw fit in the circumstances. It is therefore, in our opinion, not possible to extend any culpability to the applicant who was neither present nor aware of the incident when it took place. Consequently, amnesty cannot be granted to the applicant for acts committed by Solomon Mahlangu and Monty Motlaung in the John Orr's warehouse.
We are however satisfied that the offences committed by the applicant on or about 15th June 1977 were acts associated with a political objective and also that the applicant has made a full disclosure of all relevant facts.
We are also of the opinion that the offences committed by the applicant do not constitute a gross violation of human rights, that there is no need for a hearing and that this matter can be dealt with in terms of section 19 of the Act.
The applicant is therefore GRANTED amnesty in respect of being in the unlawful possession of a firearm and handgrenade/s and of conspiring to commit acts of sabotage on or about 15th June 1977.
SIGNED AT CAPE TOWN THIS THE 5th DAY OF APRIL 2000. AC/2000/048
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.
FORMAN MNGOMEZULU APPLICANT
(AM 0187/96)
DECISION
The applicant is applying for amnesty in terms of section 18 of the Promotion of National Unity and Reconciliation Act 1995 (Act 34 of 1995) hereinafter referred to as the "Act".
The offences which he is applying for are the following:-
1. Murder of one Absalom Mnyakeni which took place on 21 March 1992 in Daveyton and for which applicant was found guilty and sentenced to 10 years imprisonment.
2. Murder of one Patrick Nxumalo which took place on 21 March 1992 in Daveyton and for which applicant was found guilty and sentenced to 10 years imprisonment.
3. Kidnapping of one Brenda Gabo which took place on 21 March 1992 in Daveyton and for which applicant was found guilty and sentenced to 2 years imprisonment.
4. Kidnapping of one Mongezi Dunga which took place on 21 March 1992 in Daveyton and for which applicant was found guilty and sentenced to 2 years imprisonment.
5. Assault with intent to do grievous bodily harm on one Mongezi Dunga which took place on 21 March 1992 in Daveyton and for which applicant was found guilty and sentenced to 12 months imprisonment.
All these charges were heard under case no. SH488/93.
The applicant made his application by way of filling in the prescribed application form. This form was signed, duly attested to and received before the cut-off date. In the application form the applicant stated that he was also applying for two counts of robbery. This error was rectified and the application form was amended to read two counts of kidnapping. The application was not opposed and none of the victim's families were present at the hearing.
The applicant testified that he was a member of the African National Congress (ANC). He was an elder in the community and was a member of the Self Defence Unit.
He testified that on the 20 March one ANC comrade by the name of Msebenzi was killed. This man was the secretary of the ANC Youth League. He was also the son-in-law of the applicant. This murdered comrade also had parts of his body removed.
On the 21st March the applicant together with a large crowd of comrades went to the victims' houses. They took the victims from their houses, assaulted them with sjamboks and took them to the sports ground. The victims were assaulted because the comrades believed that they collaborated with the police. This was because each time the comrades had a meeting, the police would be after the comrades. Furthermore the victims, after being assaulted, admitted that they had indeed collaborated with the police. When the comrades found the victims, they discovered firearms and knives that were smeared with blood. The victims admitted that they were responsible for the ANC comrade's killing. The applicant stated that the deceased comrade was seen with the victims on the Friday preceding his death.
The victims who collaborated with the police were taken to the stadium. At the stadium they were further assaulted with sjamboks and iron bars. One of the members of the Street Committee, who has since died, issued an order that they must be burnt.
Petrol was brought and they were doused with it. The victims were still alive when they were burnt. The person who lit the fire was one Samuel Nigene. The applicant was present at all times and fully associated himself with this act.
The kidnapped victims were not burnt because they merely hosted the collaborators. They were also not involved in the killing of the deceased comrade. In order to be granted amnesty, the Committee, after considering an application for amnesty must be satisfied that:-
(a) the application complies with the requirements of the Act;
(b) the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past;
(c) the applicant has made a full disclosure of all relevant facts.
Insofar as section 20(1)(a), the Committee is satisfied that the applicant has met the requirements of the Act.
Insofar as section 20(1)(b) the Committee is satisfied that the act which the applicant is applying for is an act associated with a political objective.
Section 20(3)(b) states that one of the criteria used to determine whether an act is associated with a political objective is:
"the context in which the act, omission or offence took place, and in particular whether the act, omission or offence was committed in the course of or as part of a political uprising, disturbance or event, or in reaction thereto",
It is our view that the circumstances do meet this criteria.
Further section 20(3)(d) states that one must also took at whether act was "primarily directed at a political opponent or state property...". It is our view that this criterion has also been met because the victims were perceived to be collaborating with the police who were opposed to the ANC.
The main question is whether or not the applicant has made a full disclosure of the facts as required by section 20(1)(c). The applicant was requested to supplement his application and submit further particulars to the application. In his replying letter he stated that he did not know how the victims were murdered. He stated that he was unjustly convicted.
In another letter dated 11 May 1997 he stated that at the time the crime was committed he was not present. He was in Pietersburg on duty as a traditional doctor.
He was extensively cross-examined on this aspect. He explained this saying that he did not went to reveal the truth at that stage. He wanted to reveal the truth before the Committee. Further he stated that he lied in the criminal trial because he wanted to escape conviction.
Other than this aspect, the Committee is satisfied that the applicant has made a full disclosure of the role he took in the killing of the victims and has therefore met the requirements of section 20(1)(c).
Amnesty is therefore GRANTED to the applicant in respect of all the incidents he has applied for. The victims are to be referred to the Reparation and Rehabilitation Committee for consideration.
Signed at Cape Town on the 5th day of April 2000.
Judge S. Miller
Adv. C de Jager SC
Adv. S. Sigodi AC/2000/049
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.
JOHANNES MANDLA SHABANGU APPLICANT
(AM 5881/97)
DECISION
The applicant applies for amnesty in respect of the following offences:
1. The illegal possession of explosives and the malicious attack on and the damage of the property of Mayeza Peter Mahaule at Bosfontein in the Nelspruit district on the 27th April 1980, as part of a process to overthrow the then Government of the Republic of South Africa and thereby with a hostile intention to disturb, impair or endanger the safety of the State and in doing so committing the offence of high treason.
2. The illegal possession of firearms and ammunition on the 1st August 1980.
The applicant became a member of the ANC after he left South Africa in 1978 to receive military training at three camps in Angola. He thereafter returned to Mocambique as a trained MK member and infiltrated the Republic of South Africa. He frequently returned to Mocambique to report to his commanders about possible targets identified by him for attacks in order to enhance the cause of the ANC.
During the beginning of 1980, he visited the Bosfontein area and found that Mr Mahaule played a prominent role with other policemen in disrupting a school boycott which was aimed at furthering the cause of the ANC. The applicant further testified that after he gathered the information about Mr Mahaule he went back to Maputo where he reported to his commanders and received instructions from Mr Joe Slovo, then Chief Commander of MK, to proceed with the attack on the property.
The applicant testified that as a result of the instructions received he then threw a handgrenade at the house of Mr Mahaule during the night of 27th April 1980. An explosion followed and the property was damaged. It was not his intention to kill anybody and that was the reason why he used a low intensity handgrenade, designed to cause disruption and panic but not to kill people. No one was in fact injured. His motive was to send a message to the victim, who was a policeman, and to other people in the service of the then Government that they as Black people should not co-operate to keep the Government in power.
Mr Mahaule was selected as a target after investigations conducted by the applicant.
The Committee is satisfied that the offences were associated with a political objective, that it related to the conflicts of the past and that the applicant made a full disclosure of all relevant facts. The attack was made by the applicant as a member of a known political organisation and was directed against a member of the police then serving the Government of the day and regarded as a political enemy.
In the result amnesty is GRANTED to the applicant in respect of:
1. The illegal possession of explosives and the malicious attack on and the damage of the property of Mayeza Peter Mahaule at Bosfontein in the Nelspruit district on the 27th April 1980, as part of a process to overthrow the then Government of the Republic of South Africa and thereby with a hostile intention to disturb, impair or endanger the safety of the State and in doing so committing the offence of high treason.
2. The illegal possession of firearms and ammunition on the 1st August 1980.
The Committee is of the opinion that Mr Mayeza Peter Mahaule should be considered to be a victim in terms of Act 34 of 1995 and in terms of Section 22 of the said Act recommends accordingly.
SIGNED AT CAPE TOWN ON THE 5th DAY OF APRIL 2000.
WILSON J
ADV. S SIGODI
DE JAGER AJ AC/2000/050
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.
JOAS MABOTHE TSHOMANE APPLICANT
(AM 6030/97)
DECISION
The applicant is seeking amnesty for the following offences:-
1. Theft of a motor vehicle at Phongola in KwaZulu-Natal;
2. Bombing a railway line between Mzimhlophe Station and Phomolong Station in Gauteng and
3. The attempted murder of an unknown school girl between Mzimhlophe and Phomolong Stations, Gauteng.
All the offences were committed in 1987. He acted as a member of the military wing of the African National Congress (ANC), uMkhonto weSizwe (MK). His Commander Joseph Koetle who had issued the orders for the above operations did not testify at the hearing but, instead, sent a letter in which he confirms having given the orders and the fact that he was the applicant's commander at the relevant time.
Briefly, the evidence of the applicant is as follows. He received military training under the auspices of the ANC in Swaziland whereafter he was infiltrated into the Republic of South Africa to carry out operations on its behalf. During the training he was told that they should attack Government installations and railway lines were seen as legitimate targets to spread the propaganda of the ANC and its presence in the country, with the view to the ultimate defeat and demise of the Apartheid order. Vehicles were needed to execute the operations and these were usually stolen.
The applicant stole a Mazda vehicle at Phongola which he used to carry a bomb to the point between the two railway stations. The intention was not to kill or injure any person, hence he placed the bomb in the very early hours of the day. He says at that stage no trains would be operating. The aim was only to damage the railway line. He later became aware from newspaper reports that a young girl was injured.
At the hearing the Evidence Leader Mr Andre Steenkamp informed the Committee that all attempts to ascertain from Spoornet the name and possible whereabouts of the said girl were in vain. Her name could not be established from the police records.
We are satisfied that the applicant has complied with all the requirements of the Act. He has shown that the offences committed are acts associated with a political objective in terms of the Act and, further, has made a full disclosure of the relevant facts.
Amnesty is therefore GRANTED for all the offences.
Signed at Cape Town on this the 5th day of April 2000.
Judge S. Miller
Mr W. Malan Adv. N. Sandi AC/2000/051
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.
LUCKY JAMES HLENGWA APPLICANT
(AM 4089/96)
DECISION
The applicant applies for amnesty in respect of the murders of Samuel Sipho Hlongwana and Jerome Khuzwayo, the attempted murder of Zeblon Dube and robbery with aggravating circumstances.
All of these offences were committed on or about 23 March 1990 at or near Ntabhuka Store in the district of Ndwedwe.
The applicant at the time of the commission of the offences, was a member of the KwaZulu Police. He was stationed at KwaMashu and held the rank of constable. He was not a member of any political organisation or movement but states that he was a supporter of the African National Congress (the ANC).
He testified at the hearing of this matter that he resided at M Section, KwaMashu, which Section was predominantly inhabited by ANC supporters. Political violence was rife in the area and the ANC supporters in M Section were constantly subjected to attacks from supporters of the Inkatha Freedom Party (the IFP).
The ANC supporters organised themselves into Self Defence Units and the applicant assisted them from time to time, providing them with ammunition. He resolved to assist them further by providing them with firearms.
While thinking of a way to acquire firearms, the applicant states that he was approached by a colleague, one sergeant J J Mdluli, who was also wanting to acquire firearms in order to assist ANC supporters from his area. Mdluli informed the applicant that he had had a discussion with constable S Luthuli, a member of the KwaZulu Police who was stationed at Ndwedwe, who told him that his duties included escorting a pension pay-out team and that he planned to rob money at a pension pay-out point. The applicant and Mdluli agreed between themselves to participate in the robbery but only with the objective of obtaining firearms from the police escort. They agreed not to tell Luthuli that it was not their intention to steal money.
It was then planned to carry out the robbery on Friday 23 March 1990. On that day pensions would be paid out at three points, namely, Mkhabela Store, Msunduze Store and Ntaphuka store. The applicant states that they planned to commit the robbery at the last pay point, Ntuphuka Store, because by then the escort would be tired and off-guard as nothing had happened at the previous two pay points.
The gang who participated in the robbery consisted of the applicant, Mdluli, Luthuli, constable D Dlamini, one Nkululeko, who was an acquaintance of the applicant from KwaMashu and one Bheki, a friend of Nkululeka. Constable M Khambule was meant to be part of the gang but he withdrew at the last moment because of an earache.
On the day in question they proceeded in two vehicles to Ndwedwe. They went to the first two pay points but took no action. At Ntaphuka Store the applicant and Bheki took position next to the shop and kept guard while Mdluli and Nkululeko advanced towards the police escorts with guns pointing. The police started shooting and both Mdluli and Nkululeko returned fire. Two policemen, namely Samuel Sipho Hlongwana and Jerome Khuzwayo, were killed and a civilian, Zeblon Dube, was injured in the shooting. The applicant and his companions then picked up three HMC submachine guns and a shotgun, which had been dropped by members of the police escort, and also took a steel trunk before fleeing from the scene. When the steel trunk was later opened it was found to be empty. One of the HMC submachine guns was given to Dlamini and the other three firearms were given to Nkululeko and Bheki. Both Nkululeko and Bheki absconded after the incident and were never again seen by the applicant. All of the stolen firearms were later recovered by the police.
The applicant was arrested a few days after the incident. He, together with Mdluli and Dlamini, was, after pleading not guilty to all the charges, convicted and sentenced to an effective term of imprisonment of eighteen years.
The applicant's evidence relating to his motivation in participating in the robbery is not corroborated. He has never been a member of a political organisation, he was not ordered or instructed to participate in the robbery, he was unable to say who the commander of the local self defence unit was and stated that such was an informal structure. He never discussed the planned robbery with any senior person in the ANC and testified that the planning thereof was confined to himself and certain colleagues of his in the KwaZulu police.
It is a fact that the robbers only succeeded in stealing firearms and an empty trunk, which fact, we believe, the applicant is now trying to use to his advantage. It is, in our view, highly improbable that the applicant and all his fellow gang members, save for Luthuli, would participate in such a high risk venture merely in the hope of obtaining some firearms. The applicant's explanation for them taking the steel trunk, namely, that they thought that it contained firearms, is unimpressive and is rejected as being false. One would have expected them to have included in their planning the whereabouts of any arms that may have been stored by the police escort- they did, after all, have one of the escorts as a member of their gang. There was no basis whatsoever for them to believe that the trunk contained firearms and it is evident from the judgment handed down at the applicant's trial that the trunk which was kept in the back of a vehicle, was used to keep review forms and fingerprint pads which were used in regard to the pensions. The probabilities are that the trunk was stolen in the mistaken believe that it contained money.
We are not satisfied that the crimes committed by the applicant were acts associated with a political objective as contemplated by the provisions of Section 20 of the Promotion of National Unity and Reconciliation Act. No 34 of 1995.
We are also not satisfied that the applicant have made a full disclosure of all relevant facts.
In the result, the applicant's application for amnesty is REFUSED.
DATED AT CAPE TOWN THIS 5TH DAY OF APRIL 2000.
JUDGE S. MILLER
MR J B SIBANYONI
MR I LAX AC/2000/052
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.
JACONIA MFANLO MAFU APPLICANT
(AM 1112/96)
DECISION
The applicant seeks amnesty for the murder of Ndukuzempi Mkhize at Nyandezulu in Port Shepstone during 1990 for which murder the applicant is currently serving a term of imprisonment at Westville Prison.
At the onset applicant confirmed that pages 1 to 10 of the bundle constitute his application written in his handwriting however, he pointed out that the signature appearing on page 9 is not his. He pointed out that he does not confirm the purported English translation contained on pages 11 to 15. He also denied that he wrote and sent letters forming part of the bundle and marked exhibits "C", "D", "F", "G" and "H". The committee then requested a fresh translation of pages 1 to 10 and this was done and handed in as exhibit "E" which the applicant accepted as the correct translation of his application.
The committee also requested that an investigation and research be conducted as Westville Prison to establish the origin of the disputed documents.
The results of the investigation could not point to applicant as the author of the disputed documents. The committee also dictated certain words to applicant so as to compare his handwriting with the disputed documents. The product was handed in as exhibit "J". This was not helpful because the handwriting of exhibit "J" slightly differed even to the handwriting of pages 1 to 10 which the applicant confirmed as his, especially the way the letter "T" is written. An investigation done at the TRC's offices in Cape Town established that additional applications were received by the TRC (see exhibits "C" and "D") and a separate application number was allocated.
As a result the application testified that his application is based on pages 1 to 10 of the bundle, exhibits "A" and "E". He joined the ANC in 1985 and in 1988 he became a member of UmKhonto WeSizwe, the military wing of the ANC, and served in the operation Vula Unit. He was recruited by Mr Sipho Mkhize and the late Mr Archie Gumede. He underwent military training in the former Transkei and on his return to Port Shepstone he became a commander and a member of the ANC Youth League.
He accounted to Mr Cyril Shezi who was the leader of the ANC in the area.
He testified about the conflict between the ANC and the IFP and that IFP members worked with the police in harassing ANC members by prohibiting them from using recreational facilities and in ambushing them when they came back from meetings and rallies. The applicant also testified that the deceased, Mr Mkhize, when hearing about the death of applicant's eight year old brother, remarked and said that the younger brother would not have died in the car accident if he did not leave him (the deceased). Applicant interpreted this to mean that the deceased caused the death of his younger brother through witchcraft. He further testified that there was a rumour from his family that the deceased practised witchcraft.
A meeting was called, according to the applicant, attended by Mr Shezi and Kenneth Mkhize, the son of the deceased who was then 16 years old. Applicant's testimony is that, after the killing of the deceased was discussed a decision was made that the deceased was a legitimate target and Mr Shezi issued an order that he should be killed, and that Kenneth would pour petrol on him and set him on fire (exhibit "B"). An affidavit was filed by Mr Shezi's legal representative in which he vehemently denies attending such a meeting and giving instructions for the murder of the deceased.
Mr Shezi also denies that he was an operative under Operation Vula. He deposes further that faceless people had a campaign to kill people who practised witchcraft in the South Coast area. The Mass Democratic Movement (MDM) (which the ANC form part of), opposed this campaign and set up committees to stop it successfully. The conflict of which he was aware occurred during the 1990's between the youth on the one hand and the State. The latter used chiefs, the police, the army and the Kits Konstables called "aboblomu" to further its cause.
Kenneth Mkhize testified that he did attend the meeting as he was also a member of the ANC but that he and other young people were at a stage requested to leave the meeting. When his late father's issue was discussed he was no longer present at the meeting.
The applicant states that the reason for killing the deceased was because he bewitched and killed his younger brother; he was a police informer because he used to be seen in the company of the police and that he was an IFP member and was involved in the killing of many comrades. He explains that he made a mistake in his application form to state that the deceased was killed for killing applicant's father.
Assuming for a moment that the deceased was killed for bewitching applicant's younger brother, the committee is not satisfied that witchcraft was used for political purposes and was an act associated with a political objective because the younger brother was only 8 years old and not involved in politics. The killing of the deceased under such circumstance was merely to avenge the death of the younger brother, a factor which is specifically outlawed by the TRC Act.
However, it seems that the applicant is relying on the resolution at the meeting for the elimination of the deceased. According to his estimation he was accompanied by 200 ANC comrades in executing the order issued by Shezi and agreed to by everyone at the meeting.
Kenneth estimates the group to be 50 people.
Shezi elected to submit an affidavit and not to give viva voce evidence and subject himself to cross examination so as to test his denials of issuing the order. Not much weight can be attached to his denials in the face of applicant's version to the contrary.
The committee finds it difficult not to accept that the applicant's act, endorsed by the group of people, was for political reasons.
In the result the committee is satisfied that the test has been complied with in respect of the technical requirements of the Act, that the act is an act associated with a political objective and that the applicant has made a full disclosure of all the material facts.
Accordingly he is GRANTED amnesty for the murder of Ndukuzempi Mkhize at Port Shepstone during 1990.
The committee recommends that the next of kin of the deceased's be declared the victim and is hereby referred to the Reparation and Rehabilitation Committee for its consideration.
SIGNED AT CAPE TOWN THIS THE DAY OF 2000
JUDGE A W WILSON
MR J B SIBANYONI
ADVOCATE C DE JAGER (SC) AC/2000/053
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.
KHULULEKANI LAWRENCE MBATHA 1ST APPLICANT
(AM 3363/96)
WALTER SMILES 2ND APPLICANT
(AM 3364/96)
DECISION
The first applicant is seeking amnesty for:
"Instructions to throw hand grenade on the 24th May 1993" at Kimberley and the victims Ezekiel Lebogang Mokone (killed) and Jeane Nel (injured).
The second applicant states:
"On the 24th May 1993 I threw a hand grenade into a crowd at the Trust Bank Centre, Kimberley". He continues to state that one person was killed and others were severely or slightly injured. He also states: "Hand grenade was directed at the Bophuthatswana Representative and at the Station Commander of South African Police".
As can be seen from the aforementioned the applicants do not clearly state the acts, omissions or offences in respect of which amnesty is sought. It may be in the interest of clarity to state that the following facts were common cause at the hearing:
(a) That a hand grenade was thrown at the Trust Bank Building in Kimberley.
(b) That the date of the occurrence was the 25th May 1993 and not the 24th May 1993.
(c) That as a result of the explosion of the grenade Mr Ezekiel Mokone was killed and Mr Jeanne severely injured.
(d) That 40 other people sustained injuries.
It is also clear from the evidence that the perpetrators didn't intend to kill or injure the specific victims. The hand grenade was intended to explode in the foyer of the Trust Bank Building where other people (if present) might have been injured. The grenade was, however, deflected and exploded outside the building, killing and inuring the people referred to.
After the incident two persons, Mr Sipho Moses Mbaqa and Mr Darlington Nkosinathi Nkohla, were charged and found guilty of culpable homicide in respect of the killing Mr Mokone, attempted murder of Major Uys, the station commander of the South African Police and the illegal possession of the hand grenade. The committee will now deal with the application of the first applicant. For purposes of our decision we will accept that Mr Mbatha intended to ask for amnesty for all offences flowing from his involvement with the throwing of the hand grenade on the 25th May 1993.
The offences occurred under the following circumstances:
The ANC Youth League and Cosas organised a march from Galeshewe, Kimberley to the Trust Bank Building in the centre of Kimberley city on the 25th May 1993. The purpose of the march to hand over memoranda of protest to the Bophuthatswana consulate who had their offices in the building and to the S.A. Police. This march took place after the Peace Accord had been signed by the ANC and the then government and after the negotiations which resulted in the constitution had resumed. Permission was requested to hold the march but the Police at Kimberley were not prepared to grant the request and the representative of the United Nations, Mr Adriana Cassandra, and the chairperson of the Northern Cape Peace Committee, Adv. Jeanne Nel was called upon to mediate. The Police informed Mr Cassandra and M E Nel that the march will not be allowed unless the leadership of the Youth League and Cosas ensured that the march would be peaceful. Cassandra and Nel thereupon met Mr Steenkamp, the leader of the ANC in the Northern Cape and Mr John Block, the chairperson of the ANC Youth League who gave the required insurance that the march will be peaceful and properly marshalled. Permission for the march was thereupon obtained on condition that it will throughout be under the observation of the U.N. and the Peace Committee.
Mr Lawrence Mbatha, the first applicant in the present application, was at that stage the regional Commander of M.K. in the Northern Cape.
As commander he had discretionary powers to act in circumstances where no direct instructions from his seniors could be obtained. In evidence he conceded that Mr Steenkamp and Mr Block, who were members of the ANC civilian leadership, were regarded as his seniors and that he took instructions from them.
According to Mr Mbatha he picked Mr Smiles up at a place commonly known as Tickey Stop in Kimberley and he, Smiles and the driver of the car in which they were travelling drove towards the place known as Small O.K. where he and Smiles got out of the car, and joined the marches. Mbatha testified that at that time he instructed Smiles that after the last memorandum has been submitted and the marchers were moving away, he should throw a hand grenade through the sliding door.
The memorandum were handed over and the marchers were preparing to move away. At that time according to Mbatha Smiles threw the hand grenade. It struck a security guard in the face rolled back exploded and killed Mr Ezekiel Mokone, a co-member of the ANC and wounded several other people.
The above is a short summary of Mr Mbatha's version of the events on the 25th May 1993 up to the explosion.
After the explosion several members of the ANC were detained. In the end Mr Darlington Nkosinathi Nkohla and Mr Moses Sipho Mbaqa were charged and convicted of the very dame offences for which the present applicants now apply for amnesty.
Their convictions were largely based on the evidence of a witness, Mr Thembinkosi Steven Ngoele and a alleged confession of the second mentioned accused Mr Nkohla.
While the above trial was in progress the two applicants in the present amnesty applications approached the legal representatives of the two accused referred to above. Mr Smiles informed them that he was the guilty party and an affidavit was drawn up containing the confession. There was an attempt to hand the affidavit to the police but they declined to accept it and proceeded with the trial. Neither Lawrence Mbatha nor Smiles gave evidence at the trial to contradict the evidence presented by the State. The latter evidence was accepted and the accused Mbaqa and Nkohla were convicted.
The first applicant acted as a member of a known political organisation. According to him he acted as regional commander of M.K. and within the scope of his express or implied authority and that the act was directed against the Bophuthatswana government and the S.A. Police.
It may also be argued that he believed on reasonable grounds that he was acting in the course and scope of his duties and within the scope of his express or implied authority.
It is however clear that the act was not committed in the execution of an order on behalf of or with the approval of his organisation. On the contrary the local leaders of the ANC who he considered to be his seniors gave the assurance to the Peace Committee that the march will be a peaceful event. Furthermore the throwing of the grenade took place while the local chairperson of the ANC Youth League who the applicants regarded as their senior, was asking the marchers to disperse peacefully.
Under the circumstances the first applicant could never have been under the impression that he was acting within the scope of his authority. He was in fact acting contrary to the express undertakings given by his organisation. Any bona fide belief that he was acting within the scope of his authority is further contradicted by his behaviour after the event. He did not report to his seniors about the event, which, if it was carried out within the policy of the organisation, would surely have been approved by them.
In view of the aforegoing amnesty is REFUSED to the first applicant. The committee does not find it necessary to deal in detail with the evidence of the first applicant except to put on record that his evidence was not satisfactory on all aspects.
The application of the second applicant remains to be dealt with. This applicant made various statements which was placed before the committee. Viz.:
(a) His application for amnesty
(b) An affidavit by him dated the 27th September 1993
(c) A statement made on the 8th June 1996 to Representatives of The Truth Commission
(d) A transcription of the evidence given by him before the Human Rights Violation Committee at Kimberley on 12th June 1996.
(e) A further statement by him to representatives of the TRC dated 14 August 1996.
Apart from the aforegoing the second applicant's oral evidence before this committee was transcribed and appears on pages 265 - 406 of the record of the amnesty hearing.
This applicant contradicted himself more than he corroborate himself. He was in deed an unreliable witness but at the end of the day the committee still had to answer the question: why would a person admit to an offence that he didn't commit? One could speculate on many possible answers. The committee, however, could not ignore a probable answer which the applicant himself supplied in his statement dated the 8th June 1996 to representatives of the TRC, who we don't believe influenced him in any way.
He started off by saying that he did not attend the meeting at all and only heard on the radio about the hand grenade explosion. He then continues:
"I did not pay attention to the incident at all until I long after was contacted by major Lawrence who asked me to volunteer as the person who threw the hand grenade at the venue.
We were both members of the ANC and I knew him before hand. I joined the ANC Marshall structure in 1990.
Lawrence said it was necessary to have perpetrator or volunteer to this incident, but he never told me specifically why. He spoke of money and as I had a hard time I agreed. Sometime after I was taken to a lawyer, Rodney Isaacs who had prepared an affidavit where I confessed to be the person who threw the grenade at the venue.
I don't remember what was written in the affidavit and I was just asked to sign it. Afterwards Rodney Isaacs, the lawyer, took me to the police station, but I was kicked out without any interrogation.
The police has never since confronted me with the case.
I have a witness who can testify that I was not on the venue that day, his name is Boy Oliphant. I don't know his address but I can find his house. I never took any further notice of the matter and Major Lawrence never paid me anything".
Smiles tried to explain why he made this statement. He said that he didn't trust the people of the TRC who visited him and requested a statement from him. During his evidence he often explained that he didn't reveal the full truth in his statement of the 27th September 1993 because he didn't want to implicate his leader, Major Lawrence Mbatha. We find it strange that if he in fact did not trust the representatives of the TRC that he would voluntarily and out of his own accord tender information that would implicate his leader if that information had not element of truth.
On the evidence presented the committee is not satisfied that a full disclosure had been made and which one of Mr Smiles's versions if any reflects the truth.
Amnesty is therefore REFUSED.
We recommend that Mr. Mokone's relatives who fall within the category of victims as defined in the act and Mr Jeanne Nel and Mr. Cassandra be declared victims for the purposes of Act 23 of 1995.
SIGNED AT CAPE TOWN ON THIS THE DAY OF
NGOEPE J
DE JAGER S.C.
KHAMPEPE Ms AC/2000/054
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.
MICHAEL BENTSWANA 1ST APPLICANT
(AM 9000/97)
RAYMOND NQANDA 2ND APPLICANT
(AM 9001/97)
DECISION
The applicants were members of the ANC and Self Defence Unit hereinafter referred to as SDU's in Duduza, East Rand in 1993 under the supreme command of Ms Puseletso Skhosana.
It is common cause that there was a political conflict between the supporters of the ANC and those of the Inkatha Freedom Party (IFP) in the East Rand for political control over the area.
Mr Isaaih Ngema, the brother of one of the deceased, the late Mr Ngema, gave evidence and confirmed the political conflict that existed in the area particularly between the Duduza Hostel Residents who were perceived to be IFP and the local residents who were supporters of the ANC.
The applicants apply for amnesty in respect of their participation in the attack on Duduza Hostel on the 19th March 1994. This attack was launched pursuant to a decision taken by the first applicant and one Sam Mqwati who was an SDU commander, to launch retaliatory attacks after the ANC Hostel dwellers had been attacked by IFP Hostel dwellers on the 4th March and were chased away from the hostel. This conduct exacerbated the conflict between the members of the opposing parties.
The first applicant hit the deceased Ntombela whom he knew as an IFP supporter with a panga at the back of his neck. Other SDU members also participated in assaulting him with an assortment of sharp objects. He also hit Ngema with a panga, but did not establish whether both had died in consequence of such attacks. It is now common cause that both Ngema and Ntombela were amongst the persons who were found dead in the vicinity of the hostel shortly after the attack and that seven other persons were also found dead in that area. According to the police investigation conducted in relation to the attack on Duduza Hostel immediately thereafter, no other attack save the one alluded to by the applicants took place in the area. We are therefore satisfied that all the deceased were casualties of the attack launched by the applicants on the hostel dwellers on the 19th March 1994.
The second applicant testified that he was carrying a kierie which he used to hit the hostel dwellers at random in the hostel. He also used it to break a hostel window. He cannot identify any person on whom he used his kierie and whether the people he hit with the kierie were killed or not. He however associates himself with the intention commonly held by the SDU's that night to injure and kill their opponents.
Having regard to the evidence led before us, we are satisfied that the applicants have complied with the requirements of section 20(1) of the Act and amnesty is hereby GRANTED to each applicant in respect of the following offences:-
The murder of the undermentioned persons committed on or about 19 March 1994 at or near Duduza hostel:-
1. Mr S.M. Ngema;
2. Mr L. Mkhize and Mr Ntombela;
3. Three unidentified IFP executive branch members; and
4. Four unidentified IFP members.
This Committee is of the opinion that the families of Mr S M Ngema, Mr L. Mkhize and Mr Ntombela and the families of the seven unidentified IFP members are victims in terms of Section 26 of the Act and recommends that they be referred to the Committee on Reparation and Rehabilitation for consideration.
SIGNED ON THE DAY OF 2000
JUDGE S KHAMPEPE
JUDGE N J MOTATA
JUDGE C DE JAGER AC/2000/055
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.
PHILIP MAKWALE NYALUNGA 1ST APPLICANT
(AM 5299/97)
JOHN ITUMELENG DUBE 2ND APPLICANT
(AM 5310/97)
DECISION
The applicants apply for amnesty in respect of three (3) counts of murder, fourteen (14) counts of attempted murder, fifty (50) counts of malicious damage to property and unlawful possession of explosives.
Most of the victims save for those who suffered damages to their properties were represented by Mr Schultz and Mr Mbethe.
The applicants were members of the African National Congress and were attached to its military wing Umkhonto WeSizwe and received their military training in exile. They infiltrated the country in 1987 whereafter the 1st applicant became a member of an underground Unit in Vosloorus under the command of one Xolile Sam also known as Thabang.
A few months prior to the incident in question, the firs applicant was informed by his commander Thabang that he would participate in an explosive operation. He also informed him that he had already selected the target and obtained the explosives to be used in the operation and that since neither the applicant nor himself possessed particular knowledge about the remote control device to be used in detonating the explosives obtained, the second applicant would be brought in to join the operation for this purpose.
Although the commander initially conducted reconnaissance alone, the applicant had subsequent thereto also accompanied him on more than one occasion to the target concerned, and had observed the movement of the police whose offices were situated in the NBS building, and their observation was that there were more police who were reporting between 7:30 - 8:30 than during any other time. The decision to plant the bomb next to the building was therefore based on that information.
On or about the 23rd October 1988 the commander who was in the company of the second applicant collected the first applicant at his home by car and they all drove to the first applicant sister's place in Witbank. The commander advised them that the bomb would be planted on the following day being a Monday the 24th October 1988.
Early the next day, they commenced assembling the bomb and the second applicant connected the remote control device to the bomb. Both applicants were then ordered to follow Thabang in a Mazda. Thabang was driving a Ford Cortina and the first applicant drove the Mazda. They followed him to the taxi rank in Witbank and observed Thabang leave the Cortina with a bomb inside it next to the building housing the police station. He then walked on foot from where the Cortina was left to the Mazda. Upon entering the car he instructed the first applicant to drive away.
They drove away from the taxi rank and a short while thereafter Thabang detonated the bomb by means of the remote control device. They heard the explosion but did not stop to observe.
The second applicant testified that in or about August or September 1988 he was requested by Thabang whom he knew to be commanding a unit in the East Rand to assist him in the assembling of a bomb which had to be used in order to bomb the Witbank police station. He was informed that his assistance was being sought mainly because of his peculiar knowledge in the assembling and installation of a particular remote control device to the bomb. His evidence with regard to how they came to be in Witbank and what they did there largely corresponded with that of the first applicant.
He further stated that he did not take part in any of the reconnaissance conducted in relation to the target, that when he participated in the operation he was under the command of Thabang and had acted on his orders as a disciplined MK operative.
Both applicants contended that it was part of the MK strategy to destroy apartheid operations on instructions and to attack those who operated them. The South African Police was regarded as such a target. They further contended that they both did not participate in the selection of the target and had at all times material hereto, acted under the instructions and command of Thabang.
The applications were opposed by the victims (Christima Veronica Masuku, Lucas Moela, Phineas Makola, Betty Makola, James Radebe, Christina Mthombeni, Buti Ntombela, Roeline Stiglingh, Max Sidney Golach, Stefanus F J Etsebeth, Philipus L Lombard, Natalie Coetzee, Cedric P Moela, Emmah Masuku, Wilhelmina Mabona, Simon Nkosi and Priscilla Nomvula), on the basis that the applicants did not comply with the requirements of full disclosure. They submitted that the first applicant had in his written application stated that "thorough reconnaissance" of the target was made but that in his viva voce evidence had stated that he could not remember details such as whether or not there was a doctor's surgery or a furniture shop. This lack of detail, the victims contended amounted to lack of full disclosure. The victims further questioned the justification for planting the bomb at the place where and at the time when it was placed when there was a possibility of civilian casualty.
In our view none of the objections nullified the allegations of the first applicant that it was his commander who had selected the target and had conducted the initial reconnaissance; that the commander had prior to the first applicant's participation in the reconnaissance, advised him that he had already conducted reconnaissance; that his subsequent participation in the reconnaissance conducted in relation to the target was at the instruction of his commander and that under these circumstances it would be quite normal not to remember in great detail the many aspects of the reconnaissance conducted in relation to and concerning the target, and the lack thereof did not amount to non full disclosure nor can it be the basis on which to conclude that no thorough reconnaissance was conducted as alleged by the first applicant.
The decision to plant the bomb next to the NBS building which housed the Witbank police station was taken by Xolile Sam who was a commander of the operation and there is no evidence to controvert that. The applicants participated in the operations under the orders of their commander. Furthermore the reason why the bomb was planted at approximately 8:15 was based on the information obtained through reconnaissance conducted in relation to and concerning the target that most of the policemen reported for duty at 8:15 and left after 9:00 or 10:00.
The police were regarded as the legitimate targets and even though civilian casually was foreseen and was considered unavoidable it was bona fide believed that the major casualties would be the police and that the attack was a legitimate political attack. Significantly it was never contended by any of the objectors that the ANC policy was in any way flouted during this incident.
The other objectors indicated that they were satisfied that the applicants had complied with the requirements of the Act (including the requirements of full disclosure) and were therefore not opposing the granting of amnesty. The Act provides that amnesty shall be granted if the offence for which amnesty is sought is an act associated with a political objective as defined in the act.
Having regard to the totality of evidence, we are satisfied that the applicants were members of the ANC and were at all times material hereto acting under the instruction of Xolile Sam their commander.
The acts of the applicants were directed at the Witbank police station and were intended to further the interest of the ANC in their struggle against the State.
We are satisfied that the applicants have complied with the requirements of the Act (including full disclosure) and therefore hereby GRANT amnesty to each applicant in respect of the following offences;
1. Three counts of murder (Jacob Samuel Masuku, Elias Masina and Dina E. Moela);
2. Fourteen counts of attempted murder;
3. Fifty counts of malicious damage to property; and
4. Unlawful possession of explosives, committed on the 24th October 1988 at or near the NBS Building in Witbank.
The committee as envisaged in section 22 of Act 34 of 1995 is of the opinion that, Christima Veronica Masuku, Lucas Moela, Phineas Makola, Betty Makola, James Radebe, Christina Mthombeni, Buti Ntombela, Roeline Stiglingh, Max Sidney Golach, Stefanus F J Etsebeth, Philipus L Lombard, Natalie Coetzee, Cedric P Moela, Emmah Masuku, Wilhelmina Mabona, Simon Nkosi and Priscilla Nomvula are victims in relation to the above offence and refers the matter to the Committee on Reparation and Rehabilitation for its consideration in terms of section 26 of the act.
SIGNED ON THE DAY OF 2000
JUDGE S KHAMPEPE
JUDGE N J MOTATA
JUDGE C DE JAGER AC/2000/056
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.
EDWARD TSEHISI MOKATI 1ST APPLICANT
(AM 5897/97)
SIPHO NICODEMUS MTEMBU 2ND APPLICANT
(AM 6028/97)
JOHN ITUMELENG DUBE 3RD APPLICANT
(AM 5310/97)
DECISION
The Committee will initially deal with the applications of the 1st and 2nd applicants.
The two applicants apply for amnesty in respect of their involvement in the bomb explosions at Vanderbijl Square Bus Terminus and the Naledi Power Station during September 1987 at Johannesburg and Soweto respectively.
The first applicant testified that he was a member of the ANC and of the Special Operations Unit. He met the third applicant during 1987 in Soweto and discussed the activities of his unit with him. The third applicant was a senior commander but had his own operating unit.
The first applicant informed the third applicant of his plan to bomb Vanderbijl Square bus terminus in Johannesburg and Naledi Power Station in Soweto in such a way as to coincide with the run-up to the Municipal elections. The objective was to bring the struggle to the white areas in accordance with ANC policy and to sent a message to the white electorate. The first applicant stated that although he discussed the matter with the third applicant the final decision to carry out the operation rested with him. He instructed the second applicant to accompany him. They planted a limpet mine supplied by the third applicant, in a concrete bin at the bus stop. A time device was used which would delay the explosion for 30 minutes. It in fact exploded only two hours later. Nineteen people were injured and a number of motor cars and several buildings were damaged.
The two applicants, a few days later, caused another limpet mine to explode, damaging the Naledi Power Station in Soweto. Nobody was injured on this occasion and the objective was merely to damage State property. The limpet mine used was supplied by the third applicant.
The Committee is satisfied that the applicants have complied with Section 20(1) of the Act and that the offences for which amnesty is sought are acts associated with a political objective and were committed in the course of the conflicts of the past.
The third applicant testified that he filed more than one application with the TRC. It was in fact ascertained that he lodged two applications. The first one was received by the TRC on 10 May 1997 and the second one on 30 September 1997. The last date was the final date on which applications had to be filed. Both applications were registered under number 5310/97. In the first application the third applicant only applied for amnesty in respect of the "murder of a police informer". The name given was Sicelo Dlomo.
In his second application which was signed and attested on 7 May 1997 but only received 30 September 1997 after being faxed on that day by the ANC, he applied for amnesty in respect of:-
"Bombing of Ellis Park Stadium and Witbank Car Bomb also anything that might be brought against me, I might not remember. He further stated that he acted with "The approval of my immediate commander" and further stated that the commander's name was: Chris the address is not available".
The 2nd applicant signed and attested his application on 9 May 1997. Unfortunately it is not clear when the 3rd applicant signed his form. It was only attested to on 24 November 1999. Although the unattested form seem to have reached the TRC on 10 September 1997.
These dates are only significant in so far as the committee was informed that the first and second applicants discussed the incidents with the third applicant when they applied for amnesty.
The third applicant's applications in respect of the Ellis Park bomb and Witbank bomb were considered in separate hearings. The Committee has to decide whether an amendment at this hearing on 2 February 2000 can be allowed to make provision for the Vanderbijl Square and the Naledi bomb explosions bearing in mind that the final date for amnesty applications to be filed was 30 September 1997. A factor that is of importance is the fact that no particulars relating to these incidents even in the vaguest terms were mentioned. There is no amendment of existing particulars. Amnesty is sought in respect of two separate incidents that have not been referred to at all by the third applicant. He now seeks to introduce two offences by way of amendment long after 30 September 1997, that being the last for the submission of applications in terms of our founding Act. We therefore find that his application for an amendment brought on the 2 February 2000 is out of time and is accordingly refused.
There remains one aspect to be dealt with. The first applicant, Mr Mokati, has received indemnity under the previous acts - Act 35 of 1990, Act 124 of 1992 and/or Act 151 of 1992 which were repealed by Section 48(1) of Act 34 of 1995. Section 48(2) of Act 34 of 1995, the present act under which amnesty is granted, however states 48(2):
"Any indemnity granted under the provisions of the Indemnity Act, 1990, the Indemnity Amendment Act 1992 or the further Indemnity Act 1992, shall remain in force notwithstanding the repeal of those Acts". It is therefore doubtful whether there is still legally "any act or omission which constitutes an offence or delict" for which amnesty can be granted. The Committee did not have the opportunity to investigate whether the indemnity granted was in accordance with the Acts mentioned. The Committee, therefore, makes no ruling in that regard and although it might be ex abundant' ecutela, it has decided to GRANT amnesty to the first applicant.
Finally, it should be mentioned that Collet Debra Dawson who was injured in the Vanderbijl Square bomb blast gave evidence and shed light on the circumstances then prevailing.
The Committee recommends that the injured people listed in Annexure "A" hereto be referred for consideration as victims in terms of Section 22 of the Act.
In the result amnesty is GRANTED to Edward Tsehisi Mokati and Sipho Nicidemus Mtembu in respect of the office of High treason, and for contravening Section 54 of Act 74 of 1982 and contravening Section 28(1) of Act 26 of 1956 for being in unlawful possession of explosives, attempted murder and any other offence directly related to the bomb blasts at Vanderbijl Square Bus Terminus in Johannesburg and the Naledi Power Station in Soweto during September 1987.
The application for amendment of John Itumeleng Dube is REFUSED. His amnesty application in respect of the Vanderbijl Square bus terminus and Naledi Power Station is not considered as it does not comply with the requirements of the Act.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000 SISI KHAMPEPE (AJ)
N J MOTATA (AJ)
CHRIS DE JAGER (AJ) AC/2000/057
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.
GCINISIKO LAMONI DANDALA 1ST APPLICANT
(AM 6535/97)
MBUSO ENOCK SHABALALA 2ND APPLICANT
(AM 5727/97)
EUGENE DE KOCK 3RD APPLICANT
(AM 0066/96)
______
DECISION
______
[1] These applications for amnesty arise out of the death of Mr Batandwa Ndondo ("the deceased") who was shot and killed on 24 September 1985 at Cala.
[2] Three applicants are seeking amnesty in relation to the said death. They are:
(a) Mr Gcinisiko Lamoni Dandala ("Dandala"), who is seeking amnesty for his part in the shooting of the deceased;
(b) Mr Mbuso Enock Shabalala ("Shabalala"), who is seeking amnesty for his part in shooting the deceased; and
(c) Mr Eugene Alexandra De Kock ("de Kock"), who is seeking amnesty for his part in defeating the ends of justice, in that he changed the identity of Mr Shabalala in order to assist the latter to evade criminal proceedings arising out of the death of the deceased that were pending against him.
[3] We do not propose to deal in any great detail with the applications by Messrs Shabalala and De Kock. Suffice to say that we are satisfied that the offences which they committed were politically motivated and that they have made a full disclosure of the relevant facts. In so far as Mr Shabalala is concerned, we accept that the statement dated 3 October 1985 which purports to have been made by him and which appear to have been taken by Colonel E. Willie, was not made by Mr Shabalala. In our view, that statement was prepared as part of a cover up by senior officers of the then Transkei Police Force in order to conceal or cover-up the death of the deceased. On the evidence before us the senior police officers involved include General Kawe, General Damooi and Colonel Willie.
[4] In the circumstances, we are satisfied that the applications by Messrs Shabalala and De Kock comply with the requirements of the Act. They are, therefore, entitled to amnesty in respect of the offences in relation to which they are seeking amnesty.
[5] The application by Mr Dandala requires to be dealt with separately.
[6] He testified that he shot the deceased out of fear that if he did not take part in the shooting, the askaris would kill him. This fear, he testified, arose out of a conversation amongst the askaris on the way to Cala in the course of which they had said that if a person does not take part in the mission in which they are engaged they kill that person after they had completed their mission. Had it not been for this threat, he testified, he would not have shot the deceased. His objective, therefore, in shooting the deceased was to save his life from these askaris. His motive in shooting the deceased was, therefore, personal. On his own vision, he did not shoot the deceased for political reasons.
[7] Apart from this there are further reasons why his application should fail. We are not satisfied that he has made a full disclosure of all the relevant facts. We say this because his evidence was both unsatisfactory on the crucial question as to why he took part in the killing.
[8] In his evidence he testified that he took part in the killing because he feared that if he did not, the askaris, (Mr Shabalala, Bra Moss and Ms Shosha) would kill him. This fear arose out of a conversation he had overheard on the way to Cala when the askaris said they kill a person who does not take part in a mission in which they are engaged. In a statement made on 2 October 1997, he did not mention the fact that he shot the deceased because he feared that he might be killed. In fact, he could not, on the version he put forward in that statement, say so. In that statement he stated that:
"What I realised later is that these were askaris. Askaris are trained terrorists. I realised it after the offences was committed."
Yet in an affidavit he deposed to on 4 June 1998 and in his evidence in chief before us, he stated that he realised that he was in the company of the askaris on the way to Cala which was before the offence was committed.
[9] When he was asked to explain this apparent conflict in his evidence, his explanation was both contradictory and unsatisfactory. He said that what he was trying to convey in his statement of 2 October 1997 was that he only became aware of the name "askari" after the killing. This explanation is plainly contradicted by what is stated in the statement which is quoted in the preceding paragraph. Even if this explanation were to be accepted, it is difficult to understand why it was necessary to mention that he only became aware of the name askari after the killing. However, his explanation must be viewed against his failure to mention in that statement that he took part in the killing because of fear for his life.
[10] In cross examination he was asked why he had not mentioned in his statement made on 13 November 1985 that he took part in the killing because of fear. He gave conflicting answers. He first said at a time of making the statement he did not recall this fact. When asked why he would recall this fact 13 years later, he changed his previous explanation and said that the people who were assisting him to make the statement told him that he "must not disclose everything by then so as to not destroy my co-accused at court".
[11] During his evidence in chief, he was asked what was his intention in joining the shooting. His answer was that he intended to arrest the deceased. He said he knew that the deceased was "a trained terrorist who was fighting the government". His intention in shooting at the deceased "was to catch him, to prevent him from running away because he was a trained member of the ANC". Nothing is said about fear as being the motivation for the shooting. Yet he made it clear that had it not been for the fear he would have not taken part in the shooting.
[12] These contradictions must of course be viewed against the unsatisfactory nature of his evidence on the crucial question whether he knew the deceased. He was not an ordinary member of the security branch. He belonged to a special unit which operated underground and which was formed in order to infiltrate anti-government organisations. This unit was based in Umtata. Yet he testified that he had never heard of the deceased until the day they went to arrest him. The deceased was a high profile political activist in the Transkei. He was suspected of having placed a bomb at a Wimpy. In these circumstances, we find it highly improbable that Mr Dandala would not have known the deceased. [13] The cumulative effect of these contradictions and the unsatisfactory aspects in his evidence on material issues, is that we are not satisfied that Mr Dandala has made a full disclosure of the relevant facts. In the result he has not satisfied the requirements of the Act.
[14] To sum up therefore:
(a) Applicants Mr Mbuso Enock Shabalala application number AM5727/97 and Mr Eugene De Kock application number AM0066/96 have satisfied the requirements of the Act. They are therefore, GRANTED amnesty in respect of the death of Mr Batandwa Ndondo.
(b) Applicant Mr Gcinisiko Lamoni Dandala, application number AM6535/97 has not satisfied the requirements of the Act. His application for amnesty is therefore, REFUSED.
Signed:
JUDGE S NGCOBO
ADVOCATE S SIGODI
MR J B SIBANYONI AC/2000/058
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.
JOEL McCORD MAKANYA APPLICANT
(AM 6627/97)
DECISION
The applicant applies for amnesty for the following offences:
1. the unlawful transportation of firearms; and
2. assisting three political activists to escape after the commission of an attempted murder.
The offences flow from an incident that took place at or near Umzumbe, Kwa-Zulu Natal in or about July 1991.
The victim, a policeman at the time, one Fanie Groenewald could not be traced and the matter proceeded on an unopposed basis.
The applicant testified that he was a trained cadre and registered member of the ANC at the time. His commander one Bobby telephoned him on the day of the incident and requested transport for himself and two other of his comrades from Gamalakhe to Umgababa. The applicant picked them up in his private motor vehicle together with two black plastic bags which the applicant knew to be containing firearms for some political mission, although he did not bother to ask for details. Along the way they were stopped by a policeman who searched the vehicle. While the applicant was outside the car the policeman went to the front of the vehicle to open the front door where Bobby was sitting. A shot rung out which hit the policeman and which the applicant assumed was fired by Bobby.
Bobby instructed him to drive off. They subsequently encountered a road block. Fire was exchanged and the car was hit. The applicant and his comrades abandoned the car, one was shot dead at the scene, Bobby was wounded and another one arrested and later convicted. The applicant managed to escape and later skipped the country.
After having considered the applicants application, the affidavit filed by him and his viva voce evidence the committee is satisfied that the complies with all the requirements for amnesty, that the offences were committed with a political objective as required by section 20(1) of the Promotion of National Unity and Reconciliation Act, 1995 and that the applicant has made a full disclosure of his participation in the commission of the offences.
Accordingly, amnesty is GRANTED to the applicant for:
1. the unlawful transportation of firearms at or near Umzumbe in or about July 1991, and
2. assisting three ANC political activists to escape after the commission of an attempted murder of a policeman at or near Umzumbe in or about July 1991.
Fanie Groenewald who was wounded in the incident is declared a victim in terms of the Act and is referred to the Committee on Reparation and Rehabilitation.
SIGNED ON THE DAY OF 2000. JUDGE C DE JAGER
ADV S SIGODI
ADV F BOSMAN SC AC/2000/059
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.
ADRIAAN PIETER VAN NIEKERK 1ST APPLICANT
(AM 4353/96)
HENDRIK ALBERTUS BEUKES MOSTERT 2ND APPLICANT
(AM 4403/96)
JACOBUS HERMANUS ENGELBRECHT 3RD APPLICANT
(AM 4402/96)
CHARLES ALFRED ZEELIE 4TH APPLICANT
(AM 3751/96)
JOHANN LUDWIG DU PREEZ 5TH APPLICANT
(AM 4404/96)
GERRIT NICHOLAS ERASMUS 6TH APPLICANT
(AM 4134/96)
PETRUS LODEWIKUS DU TOIT 7TH APPLICANT
(AM 4131/96)
JOHANNES VELDE VAN DER MERWE 8TH APPLICANT
(AM 4157/96)
SCHALK JAN VISSER 9TH APPLICANT
(AM 5000/97)
LEON VAN LOGGERENBERG 10TH APPLICANT
(AM 5010/97)
DECISION
Adriaan Pieter van Niekerk ("the 1st Applicant"), Hendrik Albertus Beukes Mostert ("the 2nd Applicant"), Jacobus Hermanus Engelbrecht ("the 3rd Applicant"), Charles Alfred Zeelie ("the 4th Applicant"), and Johann Ludwig du Preez ("the 5th Applicant") apply for amnesty in respect of the role they played in the unlawful killing of Maisha Johannes "Stanza" Bopape ("the Deceased"), the disposal of the Deceased's body and the cover up of his death. Gerrit Nicholas Erasmus ("the 6th Applicant"), Petrus Lodewikus du Toit ("the 7th Applicant"), Johannes Velde van der Merwe ("the 8th Applicant"), Schalk Visser ("the 9th Applicant"), and Leon van Loggerenberg ("the 10th Applicant"), apply for amnesty in respect of their participation in the unlawful disposal of the Deceased's body and the cover-up of his death.
The Deceased died on the 12th June 1988. At the time of his death the Applicants were all members of the Security Branch of the South African Police Force.
The 1st Applicant held the rank of Major and was stationed at John Vorster Square, Johannesburg. The 2nd Applicant was a Warrant Officer and was also stationed at John Vorster Square. The 3rd Applicant and the 4th Applicant were also stationed at John Vorster Square and held the ranks of Detective Constable and Lieutenant respectively. The 5th Applicant was a Detective Sergeant and was stationed in Sandton. The headquarters of the Witwatersrand Division of the Security Branch was at John Vorster Square. The Sandton Office was a branch office of that Division. The 6th Applicant held the rank of Brigadier and he was the Divisional Commander of the Witwatersrand Security Branch. His deputy was the 7th Applicant who held the rank of Colonel. The 8th Applicant held the rank of General and was the commanding officer of the Security Branch, stationed at Pretoria. The 9th and 10th Applicants were both attached to the Eastern Transvaal Division of the Security Branch. The 9th Applicant was a Brigadier and was the Divisional Commander of the Eastern Transvaal. The 10th Applicant held the rank of captain.
All of the Applicants as well as one Bheki Nkosi testified at the hearing of this matter. The version of events as given by the Applicants may be summarised as follows:
The Deceased, together with Bheki Nkosi, was arrested on Thursday 9th June 1988 in a flat he shared with the said Nkosi in Hillbrow, Johannesburg. They were arrested by members of the West Rand Division of the Security Branch who were assisted by the 2nd, 3rd and 4th Applicants. After their arrest they were taken to Roodepoort where they were detained in terms of section 50 of the Criminal Procedure Act. No 51 of 1977. A number of other people, besides the Deceased and the said Nkosi, had been arrested by members of the West Rand Division of the Security Branch and it was agreed between the Commanders of the West Rand and Witwatersrand Divisions that the Witwatersrand Division would assist in the interrogation of some of the detainees. Pursuant to that agreement the Deceased and the said Nkosi were transferred to the cells at John Vorster Square. The 1st Applicant had been informed by Captain Jan Kleynhans of the West Rand Security Branch that the Deceased was suspected of being involved with the Maponya Group, a group of African National Congress (ANC) activists suspected of causing a number of bomb blasts in the Pretoria and West Rand areas.
The 1st Applicant then instructed the 2nd and 3rd Applicants to handle the interrogation of the Deceased. Two other members of the Security Branch who are not Applicants in this matter were ordered by the 1st Applicant to interrogate Bheki Nkosi. The 2nd and 3rd Applicants commenced their interrogation of the Deceased during the afternoon of 10th June 1988 by "processing" him, that is, by taking his finger and palm prints and obtaining his personal particulars. While doing this the 7th Applicant arrived and informed the Deceased that he was no longer being detained in terms of the Criminal Procedure Act but that his detention was now in terms of Section 29 of the Internal Security Act, Act No 74 of 1982. The Deceased was also, that afternoon, taken by the 3rd Applicant to the District Surgeon for routine examination. The District Surgeon prescribed medication for a nasal problem, which medicine was collected from a pharmacy by the 3rd Applicant.
The 1st Applicant did not see the Deceased on Saturday 11th June 1988 as he attended a meeting at the Krugersdorp Security Branch where he was given information concerning the activities of the Deceased and Bheki Nkosi. The 3rd Applicant only paid a brief visit to the Deceased in his cell that Saturday. He asked the Deceased whether he needed anything or whether he wanted to tell him anything. The Deceased declined to answer and the 3rd Applicant then left.
On Sunday 12th June 1988 the Deceased was booked out of his cell by the 2nd and 3rd Applicants and was taken up to the Security Branch offices on the 10th Floor of John Vorster Square. He was taken into a room where the 2nd and 3rd Applicants began interrogating him. The 1st and 4th Applicants were also present on the 10th floor, but they were working in different rooms on other matters.
The Deceased did not answer questions put to him by the 2nd and 3rd Applicants to their satisfaction. They reported this to the 1st Applicant who also then participated in the questioning of the Deceased. The 1st Applicant explained the gravity of the situation to the Deceased and informed him that unless he co-operated he would continue to be detained in terms of section 29 of the Internal Security Act. The Deceased nevertheless refused to co-operate.
No physical violence was used against the Deceased during this period of interrogation which lasted approximately two hours. The 1st, 2nd, 3rd and 4th Applicants then discussed the matter amongst themselves and agreed that more drastic measures should be resorted to in order to induce the Deceased to co-operate. They decided that the Deceased should be given the so-called "shock treatment". An electric shock device was not available at the John Vorster Square offices. The 5th Applicant, who was then off duty, was telephoned at his home. No one can recall who telephoned the 5th Applicant. He informed the caller that there was an electric shock device at the Sandton offices and he undertook to immediately fetch the device and deliver it to them at John Vorster Square. He did so. The device consisted of an old telephone dynamometer to which was attached a crank handle and electrical cords. The ends of the electrical cords are either attached to the victim or moved across the body of the victim and when the crank handle is turned an electric current is produced which travels down the electric cords onto the body of the victim.
The 5th Applicant prepared the device for use by ensuring that the electrical cords were properly attached and by placing dampened pieces of cloth at the ends of the cords. The dampened pieces of cloth were applied to ensure that no visible burn marks would result. A wooden chair was taken out of the office of the 1st Applicant and placed in the corridor. The Deceased was placed in the chair and his shirt and shoes were removed. His hands were tied to the supports of the chair and his feet to the legs of the chair. The crank handle of the device was operated by the 5th Applicant and the 3rd Applicant pushed the cords against and moved them over the chest of the Deceased. The 1st, 2nd and 4th Applicants looked on.
The 5th Applicant turned the handle two or three times and then stopped. The Deceased was asked if he had anything to say but did not respond. This process was repeated three or four times over a period of three of four minutes. After the third or fourth time the Deceased's head and upper body slumped forward. He appeared to be unconscious. He was untied from the chair and laid on his back on the floor. The 5th Applicant tried to resuscitate him but after a short while it was determined that he was dead.
The Applicants present realised that they were in a serious predicament and that the death of the Deceased would have far-reaching political implications, particularly as the 16th June, the anniversary of the Soweto uprisings, was only few days away. They discussed the matter amongst themselves and the 1st Applicant decided that their commanding officer, the 6th Applicant, should be informed. He telephoned the 6th Applicant and briefly informed him of what had happened. He then immediately left and went to the home of the 6th Applicant where the matter was fully discussed between them. The 6th Applicant indicated that he would take the matter up with head office.
The 1st Applicant returned to John Vorster Square. The body of the Deceased was then laid on the floor of the room where he had been interrogated and a blanket was placed over it. They then waited for instructions from the 6th Applicant. The 6th Applicant, shortly after the departure of the 1st Applicant from his home, went to see his commanding officer, the 8th Applicant, in Pretoria. They discussed the matter in depth and after considering the probable dire consequences the revealing of the death of the Deceased would have for the government and the police, they decided to cover-up the death of the Deceased by disposing of his body and creating a mock escape. They decided that the body should be disposed of in the Eastern Transvaal and that the services of the 9th Applicant be used for this purpose.
The 6th Applicant telephoned the 9th Applicant and advised him that he had a "problem concerning a detainee" and he asked for assistance. The 9th Respondent agreed to assist but said he did not want to know any details. It was agreed that 1st Applicant would make the necessary arrangements with the 9th Applicant.
The 6th Applicant then contacted his deputy, the 7th Applicant and requested him to go to the offices at John Vorster Square. At the offices the 6th Applicant informed the 7th Applicant of what had transpired. He also informed him and the others present of the decision to dispose of the body and to stage a mock escape.
The 1st Applicant communicated telephonically with the 9th Applicant who was in Middelburg and it was arranged that they would meet him at a certain bridge near Bronkhorstspruit on the highway between Middelburg and the Witwatersrand.
The body of the Deceased was placed in plastic bags and was put into the boot of a motor vehicle which was parked in the basement of the building. The vehicle in which the body was placed was driven by the 4th Applicant to the rendezvous points. The 1st Applicant and 2nd Applicants were passengers in that vehicle. The 3rd and 5th Applicants followed them in another vehicle. They met the 9th Applicant at the bridge as planned. Also present at the bridge, in his own vehicle, was the 10th Applicant. The 1st Applicant had a brief discussion with the 9th Applicant and they then all drove to a quiet country road.
There the body of the Deceased was transferred into the boot of the 10th Applicant's vehicle. The 9th Applicant instructed the 10th Applicant to get rid of the body. He gave no instruction as to where or how the body should be disposed of - he left this to the discretion of the 10th Applicant. The 9th Applicant then returned to Middelburg and the 1st, 2nd, 3rd, 4th and 5th Applicants returned to Johannesburg to plan the mock escape. The 10th Applicant drove approximately 350 kilometres to a secluded spot on the Komati River which was very close to the Mozambique border. The spot was familiar to him and he knew that the river there was infected with crocodiles. He arrived there sometime after midnight. He placed the body in the river and drove back to his home at Middelburg. The body was never recovered.
The five other Applicants arrived back at John Vorster Square at approximately 22h00. They planned the fake escape which was then acted out by them at approximately midnight. The pretence was that they were taking the Deceased (acted by the 4th Applicant) to Sebokeng in the vicinity of De Deur where he was supposed to point out the house of a contact person. The 4th Applicant put on Deceased's shoes which had been left at the offices (these would hopefully provide a realistic scent for sniffer dogs to follow at the scene of the mock escape). He also attached a set of leg irons to himself but only to one of his ankles. He also took along a set of opened handcuffs. The keys for the leg irons and handcuffs were put into a side pocket of the 2nd Applicant's jacket which was draped over the front passenger seat of the vehicle they were to use. The 4th Applicant sat in the rear seat behind the front passenger seat. The others in the vehicle were the 1st, 2nd and 3rd Applicants.
They drove to a place near De Deur where there was a mielie field next to the road. The 5th Applicant followed them in a separate vehicle. They stopped and alighted from the vehicle. The 5th Applicant drove his vehicle to a spot a few hundred metres further on and waited there.
The 4th Applicant then punctured the right rear tyre of their vehicle with a knife. He removed the keys for the leg irons and handcuffs from the jacket pocket and then ran into the mielie field while the 2nd and 3rd Applicants were changing the punctured tyre. The 1st Applicant fired a few shots into the air. The 4th Applicant made sure that the chain of the leg irons attached to his ankle made a distinct trail into the mielie field. He ran in the mielie field for a few hundred metres before he unlocked the leg irons. He left the leg irons and the opened handcuffs in the field and then ran to the 5th Applicant's vehicle. He and the 5th Applicant then drove to John Vorster Square.
After the wheel of the vehicle had been changed, the 1st, 2nd and 3rd Applicants drove to the Residentia Police Station where they reported the escape. All necessary branches, including the dog unit were informed of the escape. They returned to the scene with members of the Vereeniging Security Branch, all of whom were unaware that the escape was nothing more than a pretence. The next day the Applicants compiled a detailed false report relating to the "escape", setting out step by step what had happened and who was involved.
The Applicants thereafter perpetuated the cover-up of the Deceased's death either passively, by permitting the investigation into the alleged escape to continue, by failing to inform the Commissioner of Police and the Minister of Law and Order of the true facts and by maintaining their silence and keeping the truth a secret, or actively by submitting false reports about the escape and by providing false information of the escape to the relatives of the Deceased and their legal representatives.
The 1st, 2nd, 3rd, 4th and 5th Applicants stated that they had knowledge, in varying degrees, of the electric shock machine. They stated that in using the machine on the Deceased their intention was to frighten the Deceased and to coerce him into co-operating with them. It was not, they said, their intention to kill him and they were surprised and shocked when the Deceased died. They all acknowledge that they unlawfully caused the death of the Deceased. They further aver that while the use of the electric shock machines was not in accordance with police policy, it was common knowledge amongst members of the police force that such machines were often used in interrogations and that their superior officers condoned such use by turning a blind eye.
All of the Applicants stated that they were supporters of the National Party and the government: they stated that at all times they acted in their capacities as policemen and supporters of the government. They regarded themselves as combatants in a war situation. They had sworn an oath of allegiance to the state and they did everything in their power to support the government and to resist the onslaught of the liberation movements against it.
The testimony of Bheki Nkosi confirms that he and the Deceased were arrested together on 9 June 1988, that they spent that night in detention at Roodepoort and that they were transferred to John Vorster Square the next day. He stated that the 4th Applicant acted aggressively during the arrest and that he (the 4th Applicant) punched the Deceased. It is clear from his evidence that he did not see the Deceased again after they were placed in separate cells in Roodepoort.
They were transported to John Vorster Square separately and they were also detained in separate cells there. He stated that on 10th June 1988 he was taken up to the 10th floor of John Vorster Square where he was questioned by two policeman (Messrs Syfert and Wilkens) who are not applicants in this matter. He avers, however, that while he was being questioned there he heard the Deceased speaking in another office and that from time to time the 2nd Applicant came to ask him questions obviously with the intention to confirm what he had been told by the Deceased. He also heard the Deceased making grunting noises which led him to believe that the Deceased was being assaulted.
Mr Nkosi testified further that after he was questioned he was taken to the Sandton police station where he was detained. On the following Monday he was informed by a Colonel (who he could not identify) that he was being detained in terms of section 29 of the Internal Security Act. Later that day he was blindfolded by two policemen who were unknown to him and taken to a place which he believes was in Pretoria where he was tortured and interrogated. His interrogators tortured him by using an electric shock device. He stated that on Wednesday 15 June 1988 Syfert told him during an interrogation that the Deceased, the previous Sunday, had been taken out of the police cells to point out a DLB somewhere in Sebokeng and on arrival there he ran away and was shot dead by the police.
Section 20(1) of the Promotion of National Unity and Reconciliation Act No 34 of 1995 (the Act) provides as follows:
"20(1) If the committee, after considering an application for amnesty is satisfied that:-
(a) the application complies with the requirements of this Act;
(b) the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsection (2) and (3); and
(c) the Applicant has made full disclosure of all relevant facts, it shall grant amnesty in respect of that act, omission or offence".
With regard to the provisions of section 20(1)(a) of the Act, we are satisfied that all of the applications under consideration in this matter comply with the formal requirements of the Act, that is, that they were all submitted timeously on a properly completed prescribed form.
With regard to the second requirement which is set out in section 20(1)(b), the relevant provisions of subsection (2) referred to therein are contained in paragraphs (b) and (f) thereof. Subsection 2(b) and (f) provide that, unless the context of the Act indicates otherwise, an "act associated with a political objective" means any act or omission which constitutes an offence or delict which according to the criteria in subsection (3) is associated with a political objective, and which was advised, planned directed, commanded, ordered or committed within or outside the Republic during the period 1 March 1960 to the cut off date (10 May 1994), by any employee of the State or any former state or any member of the security forces of the State or any former state in the course and scope of his or her duties and within the scope of his or her express or implied authority directed against a publicly known political organisation or liberation movement engaged in a political struggle against the State or a former state or against any member or supporters of such organisation or movement, and which was committed bona fide with the object of countering or otherwise resisting the said struggle, or by any such employee or member who on reasonable grounds believed that he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority.
The criteria set out in sub-section (3) are, briefly, the motive of the person who committed the act, omission or offence, the context in which the act, omission or offence took place, the legal and factual nature of the act, omission or offence, the object or objective of the Act, omission or offence, whether the act, omission or offence was committed in the execution of an order of, or on behalf of, or with the approval of the institution or body of which the person who committed the act was a member, an agent or a supporter, and the relationship between the act, omission or offence and the political objective pursued.
The applicants were all members of the security forces of the State. The evidence establishes that at all relevant times the applicants acted in the course and scope of their duties as members of the Security Branch of the police force. The arrest of the Deceased was initiated and, in the main, effected by the West Rand Division of the Security Branch; the interrogation of the Deceased was done by members of the Witwatersrand Division at the behest of the West Rand Division; the 6th and 7th Applicants were involved in the incidents for no other reason then they were the senior officers of the Witwatersrand Division, the 8th Applicant was approached with the problem concerning the Deceased in his capacity as the commanding officer of the Security Branch and he arrived at the decision and issued the instruction to dispose of the Deceased's body and cover up his death when acting in such capacity; and all the other Applicants participated in the cover-up by acting on such instructions.
It would appear that section 20(2)(b) of the Act contains a paradox. If a narrow literal interpretation is given to the phrase -
"Any act or omission which constitutes an offence or delict and which was advised, planned, directed commanded, ordered or committed by any member of the security forces of the State in the course and scope of his or her duties and within the scope of his or her express or implied authority..." then it may be concluded that no policeman or policewoman who wilfully committed an offence while on duty acted within the scope of his or her express or implied authority as no statutory provision or term of employment provided any authority to any member of the police force to act unlawfully. Such an interpretation, when taking into consideration the whole context of the Act, is clearly in conflict with the spirit of the Act and the intention of the legislature which is obviously to include members of the police force in the amnesty process and not to deprive them of the opportunity of being granted amnesty in respect of offences committed by them which were related to their duties.
At the time in question the onslaught against the government by the liberation movements was intense. There is evidence that a number of bomb blasts had taken place in the Pretoria and West Rand areas during a period of a matter of weeks immediately prior to the arrest of the Deceased. It was suspected that a number of such blasts were caused by a group of ANC activists known as Maponya Group. The information supplied by the West Rand Division of the Security Branch to the 1st Applicant was that the Deceased had connections with the Maponya Group. The intention of those Applicants who interrogated the Deceased was to extract as much information about the Maponya Group as possible from the Deceased as quickly as possible with the ultimate objective that the information gleaned would be used by the Security Branch to stem the onslaught against the government. The methods used in the interrogation of the Deceased were both odious and unlawful. We are, however, after careful consideration, of the view that their use of the electric shock device in the interrogation was not disproportionate to the objective they were pursuing. According to them the use of electric shock devices in interrogation was common practice (which evidence tends to be confirmed by the fact that such a device was readily available at the Sandton Offices). They perceived it as being an effective and convenient method of forcing the victim to co-operate and they did not anticipate or suspect that its' use would have fatal consequences.
We are satisfied, after careful consideration of all the facts and circumstances and after taking the criteria set out in section 20(3) of the Act into account that the interrogation of the Deceased as well as his unlawful killing occasioned thereby were acts associated with a political objective as contemplated by the Act, which acts were committed by persons (Applicants No's 1 to 5) who reasonably believed that they were acting in the course and scope of their duties and within the scope of their authority.
The only evidence relating to the disposal of the Deceased's body and the cover-up of his death of the Applicants. The decision to dispose of the body and cover-up the death of the Deceased was made by the 8th Applicant and it was he who issued instruction that that course of action be followed. it is apparent from his evidence that his decision in this regard was politically motivated. He, after being informed of the unlawful killing of the Deceased, a section 29 detainee, decided that the prescribed procedures should not be followed in order to prevent the death of the Deceased becoming public knowledge. He was of the opinion that public knowledge of the Deceased's death would seriously compromise both the Security Branch and the Government and would also lead to a further breakdown of the maintenance of law and order, particularly in the light of the fact that the 16th of June, the commemoration date of the Soweto uprisings, was only a few days away. He, after taking the political ramifications of the Deceased's death into account, decided there it would be in the best interests of both the police and the government to keep the death a secret.
The roles performed by the other Applicant's in the cover-up were, notwithstanding the fact that the planning and execution thereof was left to their discretion, in obeyance of the instruction issued by the 8th Applicant. There is no doubt that the instruction was unlawful and there is also no doubt that they were all aware of the fact that what they were doing in disposing of the body and concocting a false escape was unlawful. The guideline contained in section 20(3)(e) of the Act, namely, the consideration whether the act, omission or offence was committed in the execution of an order, cannot and should not be read as if it refers to lawful orders only (see Rapholo vs. State President and Others 1993 (1) SA 680 (T) at 686-687). It is our view also that so long as there is evidence that the act or omission was associated with a political objective, the persons (such as, in this matter, the 9th and 10th Applicants) who performed the act or made the omission on the orders of a superior officer need not have been aware of the political objective associated with their act or omission. Their ignorance of the specific circumstances founding the political motive behind the instruction given to them, will not be fatal to their application for amnesty.
We are, again after careful consideration of all the evidence before us, satisfied that the disposal of the Deceased's body and the cover-up of his death were acts, omissions and offences associated with a political objective committed in the course of the conflicts of the past.
With regard to the requirement of full disclosure of all relevant facts, the only evidence before us relating to the actual death of the Deceased and the cover-up of his death is that of the Applicants. The evidence of Bheki Nkosi, in so far as it concerns some of the Applicants, only relates to events which occurred on 9th June 1988 (the date of the arrest) and 10 June 1988. His evidence is in conflict with that of the 4th Applicant in regard to precisely what happened at the arrest, in particular whether the 4th Applicant assaulted the Deceased at the time of the arrest. The evidence of Mr Nkosi as to what occurred at the time of the arrest is accepted as being the correct version. This conflict, however, although it casts doubt on the credibility of the 4th Applicant, is, in our view, insufficient in itself to justify a finding that the evidence of the 4th Applicant and the other Applicants relating to events on the days following the arrest should be rejected as being false.
The evidence of Mr Nkosi also tends to conflict with the evidence of the 1st, 2nd, 3rd and 4th Applicants when they say that the Deceased was not assaulted or tortured while being interrogated prior to Sunday 12 June 1988. Mr Nkosi stated that when he was in a room on the 10th floor of John Vorster Square on 10 June 1988 he heard the Deceased speaking in another room and he heard the Deceased making grunting sounds, which suggests that the Deceased was being assaulted. This evidence of Mr Nkosi is not sufficiently cogent to allow a conclusive finding that the Deceased was being assaulted. Mr Nkosi deposed to a lengthy affidavit on 15 February 1989 in which he, inter alia, described the events which took place on 19 June 1988. He made no mention in that affidavit of having heard grunting sounds and his explanation for the omission, namely that, he only recalled that the grunting sounds were made after he signed the affidavit, is unimpressive. The probability of the deceased being assaulted is in itself not so material as to render the Applicants' evidence improbable.
As stated above, the evidence of the Applicants as to what occurred on Sunday 12 June 1988 and thereafter stands uncontradicted. The evidence of each of the Applicants involved in the torture of the Deceased, the disposal of the body and the mock escape corroborates, in essence, the evidence of the others. Certain contradictions do appear but these only relate to questions of detail and may be ascribed to the long period of time that has elapsed since the occurrence of the events. The contradictions that exist are not so material as to render their evidence unacceptable. There are no contradictions between the evidence of the 6th and 8th Applicants relating to what to place between them after the death of the Deceased.
The version of 1st, 2nd, 3rd, 4th and 5th Applicant relating to the death of the Deceased leaves one with the uneasy feeling that they may be protecting themselves by playing down their culpability. Their version raises the obvious question of why the Deceased, a young man of good physique, should die after the application of a few shocks, particularly so when it was common practice to use the shock device and such practice did not result in other deaths. This question cannot be answered without the benefit of a post-mortem report.
Despite this misgiving we are of the views that the version of these applicants is not so inherently improbable so as to justify its rejection as being false.
Various allegations regarding the disposal of the Deceased's body have come to our knowledge. One Mokaleng alleged that the body was buried in the veld in the Rustenburg area. Excavations were carried out at places pointed out by him without success. It has also been alleged that the body was thrown down a disused mineshaft. A further allegation is that it was blown up with explosives. None of these allegations have been substantiated and the only evidence before us relating to the disposal of the body is that of the 10th Applicant, which evidence, also, is not so highly improbable as to warrant its rejection as being untruthful. There is also no basis for rejecting the evidence of the 6th and 8th Applicants in regard to the decision taken to conceal the death of the Deceased and their evidence accordingly stands.
The Applicants have admitted to the unlawful killing of the Deceased, the unlawful disposal of the Deceased's body and the unlawful concealment of his death. We are, in the circumstances and in the light of what is said above, satisfied that they have made a full disclosure of all the relevant facts.
In the result, their application for amnesty succeeds and:
Adriaan Pieter van Niekerk, Hendrik Albertus Beukes Mostert, Jacobus Hermanus Engelbrecht, Charles Alfred Zeelie, Johann Ludwig du Preez, Gerrit Nicholas Erasmus, Petrus Lodewikus du Toit, Johannes Velde van der Merwe, Schalk Jan Visser and Leon van Loggerenberg are GRANTED amnesty in terms of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 in respect of all acts, omissions or offences committed by them in regard to the death of and the disposal of the body of Maisha Johannes Bopape on 12 June 1988 and the subsequent cover-up in regard thereto.
We recommend that the persons referred to in the annexure to this decision should be declared victims in terms of the Act.
SIGNED AT ON THIS DAY OF 2000.
JUDGE S MILLER
JUDGE S NGCOBO
ADV C DE JAGER SC
MR J MOLOI
ADV L GCABASHE AC/2000/060
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.
CHRISTO NEL APPLICANT
(AM 6609/97)
DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act").
The applicant is Christo Nel ("Nel") who was at all material times a member of the South African Police, based at the Durban offices of the security branch at the then C.R. Swart Square.
He has applied for amnesty for his role in the torture of Yunis Shaik ("Shaik") during the latter's detention in July 1985 in terms of section 29 of Act 74 of 1982. Shaik and other members of his family had been detained for questioning in connection with ANC activities.
Nel testified in support of his application. He said that he had received instructions to fetch Shaik from the cells at C.R. Swart Square where he was being detained and to take him to offices of the security branch in the same building for interrogation.
During the interrogation, Shaik was tortured and Nel was instructed assist by holding one of Shaik's arms during such torture. Nel was the only witness during the hearing.
Shaik was present at the hearing and represented himself. He made a statement in which he detailed the consequences both to himself and his family of the detentions. He indicated that he was not opposing the application and confirmed Nel's account as being a full disclosure of what had transpired.
A person implicated by Nel in his application filed an affidavit denying his involvement in the instance. However, both Nel and Shaik place him one the scene.
We are satisfied that Nel has made a full disclosure of all relevant facts and that he acted upon the orders of a senior officer. We are thus satisfied that the applicant has satisfied the requirements of section 20(1) of the Act.
In the result, amnesty is GRANTED in respect of all acts, omissions or offences, including delicts, arising from or in connection with the applicant's role in the torture of Yunis Shaik during 1985, at C.R. Swart Square, Durban.
The Amnesty Committee is of the opinion that Yunis Shaik is a victim as defined in the Act and he is accordingly referred to the Committee on Reparation and Rehabilitation for consideration as such, in terms of Section 26 of the Act.
DATED AT THIS DAY OF 2000.
JUDGE A WILSON
ADV F BOSMAN MR I LAX AC/2000/061
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.
LINDANI MTHIYANE APPLICANT
(AM 3688/96)
DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995, as amended (hereinafter referred to as "the Act").
The Applicant and a certain Mhle Wilfred Msomi were arraigned before the Regional Court for the district of KwaZulu Natal at Durban on charges of attempted murder and illegal possession of hand grenades. They were both found guilty as charged on one count of attempted murder and were acquitted on the count of illegal possession of hand grenades.
They were both sentenced to eight years imprisonment. The Applicant served five years of his sentence and has since been released from prison.
The Applicant applies for amnesty for the following offences:
(a) Attempted murder;
(b) Unlawful possession of a hand grenade;
(c) Malicious damage to property;
(d) Any offence or delict directly arising out of the incident which occurred on the 12th April 1992 when the Dladla homestead was attacked with a hand grenade.
He testified before the Amnesty Committee that at all material times he was residing at Danganya, KwaZulu Natal. He was elected chairperson of the Danganya Youth League at Umgababa which subsequently became the branch of the ANC Youth League when political organisations were unbanned in 1990. He stated that the conflict in the area of Umgababa started in 1989 when people not belonging to political organisation but were on the side of the traditional leaders started fighting Applicant's organisation. Some people were attacked and killed. Eventually it was clear that the conflict was between the ANC and the IFP. On the morning of the 12th April 1992 Applicant and his fellow comrades received a report from members of the community that two of their comrades were killed and houses were set on fire on the previous night. The youth league held a meeting with the five members of the Self Defence Unit in the area. A decision was taken that an attack should be launched so as to scare and neutralise those who attacked the ANC members. The Dladla homestead was selected as a target because the Dladla family remained and continued to stay in an IFP stronghold when ANC supporters fled that particular area. However he could not vouch that Mr Dladla was an IFP member. There was a clear demarcation between the area occupied by the ANC and that occupied by the IFP. According to reports, a group of the attackers had congregated either at or near the Dladla homestead.
Applicant and Mr Msomi, armed with hand grenades, went to launch the attack on the Dladla homestead. The other comrades and SDUs remained behind to keep watch and protect other areas from possible attack by the IFP.
He threw the hand grenade at the house aiming at the window but is hit the wall and boomeranged to him. Both Applicant and Msomi sustained injuries. The Applicant lost consciousness and regained it at hospital. Mr and Mrs Dladla attended the hearing. They did not oppose the application. The evidence leader, Ms Patel, advised the Committee that apart from the fact that two hand grenades exploded, the Dladla family confirmed the Applicant's version of the incident. The Applicant stated that he is unable to testify whether Mr Msomi also exploded his hand grenade or whether it was detonated by the police because he lost consciousness immediately when the hand grenade thrown by him exploded.
We are satisfied that the Applicant complied with all the requirements of the Act in respect of the technical formalities, full disclosure and that the offences were acts associated with a political objective. The Umgababa area, like many areas in KwaZulu Natal, was embroiled in a conflict between the IFP and the ANC. This was characterised by the segregation of places into IFP and ANC strongholds. As an office bearer of a political organisation, there is no doubt in the Committee's mind that the Applicant acted for a political objective and not for spite or personal benefit.
In the result the Applicant is GRANTED amnesty for:
(a) Attempted murder;
(b) Unlawful possession of a hand grenade;
(c) Malicious damage to property;
(d) Any offence or delict directly arising out of the incident which occurred on the 12th April 1992 when the Dladla homestead was attacked with a hand grenade.
Mr and Mrs Dladla are referred to the Reparation and Rehabilitation Committee for its consideration.
DATED AT CAPE TOWN THIS DAY OF APRIL 2000.
JUDGE DENZIL POTGIETER
ADV S SIGODI
MR J B SIBANYONI AC/2000/062
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.
THAMSANQA NDLOVU APPLICANT
(AM 5630/97)
DECISION
The Applicant applies for amnesty in terms of the Promotion of National Unity and Reconciliation Act No. 34 of 1995, as amended (hereinafter referred to as "the Act").
The offences which he is applying for amnesty are:
1. Robbery of one Thamsanqa Jerome Mbhele of a firearm which took place on 2 July 1992 at F Section Kwamashu township. The Applicant was charged and committed of the said offence on 17 January 1995 at the Durban Regional Court under case number 41/4718/92 and sentenced to six years imprisonment;
2. Unlawful possession of a firearm for which he was charged and convicted under the same case number and sentenced to 18 months imprisonment;
3. Unlawful possession of ammunition for which he was charged and convicted under the same case number and sentenced to 6 months imprisonment.
This application was unopposed. Notices were sent to the victim and the victim indicated that he was not interested in the application.
The Applicant submitted his application on the prescribed form which he signed and was properly attested to. The offences which he is applying for occurred before the cut-off date and the application form was received before the cut- off date.
The Applicant testified to his political background as follows, he was 28 years old and resided at F1067 KwaMashu, Durban. Whilst he was still a scholar he was a supporter of the United Democratic Front. He then left South Africa and went to Swaziland where he joined the ANC and in particular its military wing Umkhonto weSizwe ("MK"). Whilst in exile he went to various places like Zambia, Uganda, Tanzania where he received the necessary training as an MK cadre.
They were then repatriated to South Africa and he arrived in the country in December 1991. When he arrived in the country, he realised that although the ANC had been unbanned, there was a lot of tension between the ANC, the police and the IFP. There was war going on. The IFP as well as the police were carrying out sporadic attacks on the members of the community to create a state of unrest. The community had no means of protecting themselves.
It was against this background that he and Keke Nyawose decided to take it upon themselves to do something to protect the community. They decided that the first step would be to try and get some firearms since they did not have any.
On the 2nd July 1999 the Applicant and Keke Nyawose saw the victim and noticed that he was in possession of a firearm. They did not know him but they suspected that he could well be a political opponent or even a policeman.
Keke Nyawose approached the victim and started some conversation with him. Whilst he was still talking to Keke, the Applicant approached the victim from behind and hit him on his head with an empty drink bottle. The victim fell and the Applicant took his firearm. Thereafter he shot in the air twice or thrice, he cannot recall. The purpose was to scare the victim so that he would not follow them. The was then arrested by the police.
When he did this he was under no order to do so from his organisation but as a trained MK cadre, he saw it as his duty to protect the community. He stated that his actions were in accordance with the policy of the ANC.
In order to qualify for amnesty the Committee must be satisfied that the:
(a) the application complies with the requirements of the Act;
(b) the act to which the application relates is an act associated with a political objective;
(c) the Applicant has made a full disclosure of all relevant facts.
It is our view that the Applicant has satisfied all the necessary requirements of the Act and therefore amnesty is GRANTED in respect of all the offences that he has applied for.
The victim is referred to the Reparation and Rehabilitation Committee for its consideration.
DATED AT CAPE TOWN THIS DAY OF APRIL 2000.
JUDGE DENZIL POTGIETER
ADV S SIGODI
MR J B SIBANYONI AC/2000/063
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.
FRANS TLOKWE MASERUMULE APPLICANT
(AM 6217/97)
DECISION
The applicant makes an application in terms of Act 34 of 1995 as amended ("the Act") in respect of offences committed before, during and after an attack on what was known as the anti-insurgency temporary base at Tonga, KwaZulu-Natal during 1982.
The applicant was a member of the African National Congress (ANC) and its military wing uMkhonto weSizwe (MK). That the ANC was in military conflict with the then South African Government is well documented. This fact was not contradicted or challenged during this hearing. Furthermore MK operated from outside South Africa and conducted an armed struggle against the then State. Much of the attacks were directed at military targets. The latter however also took steps to counter MK operations.
In the result, amnesty is GRANTED to the applicant in respect of:-
(a) Attempted murder in respect of an undetermined number of persons;
(b) The unlawful possession of explosives in contravention of the Explosives Act;
(c) The unlawful possession of firearms and ammunition utilised during the operations for which amnesty is sought;
(d) Malicious Injury to Property; and
(e) Any other offence(s) which may have resulted from the attack on the aforementioned incident during 1982.
DATED AT PRETORIA ON THIS DAY OF 2000.
JUDGE R PILLAY
ACTING JUDGE N J MOTATA
ADV S SIGODI AC/2000/064
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.
ISAAC NTOKA APPLICANT
(AM 1206/96)
DECISION
The applicant makes an application for amnesty in terms of Act 34 of 1995 as amended (the Act) and in respect of the murder of an unidentified person, public violence and the unlawful possession of firearms and ammunition.
The applicant was a member of the Africanist National Congress (ANC) in particular the Youth League (ANCYL). He patrolled the area with colleagues in order to protect themselves and the community in general from the attacks by members of Inkatha Freedom Party (IFP) with which the ANC was in conflict. His immediate commander was Mr Nkosi at whose home the groups would congregate before embarking on their actions. They would be armed in doing so. They were unlawfully armed with weapons provided by the leadership in the area at the time.
Such was the conflict that it developed from initial defensive actions to positive pre-emptive measures which amounted to offences. At Ratanda, Heidelberg, on the 21 August 1992, at about 2pm, they came across a male person (deceased) wearing an IFP T-shirt, and carrying an assegai. This indicated to them that he was a member of the IFP. The person was grabbed and searched. He produced his membership card confirming that he was a member of the IFP. There were many of them on patrol. They then shot him and burnt his body. He had a firearm. Two persons shot at the deceased. It was the applicant and Jacob Moremi who shot at him. Thereafter the applicant poured petrol on the body of the deceased and set him alight. The petrol was obtained by draining it from a motor vehicle. The police arrived, and a shoot out ensued. He was injured and arrested.
During the period of 1992 and 1993, when the conflict between the ANC and the IFP, the groupings also set light to the property of certain members of the community. On a particular day, in response to an attack on residents by IFP, the applicant and his group went on a rampage directed at the IFP. In particular they burnt down the houses of Lovey Majola, Pat Ndlala and Mr Mayaba who were identified as a member of the IFP. Their homes were burnt after the owners' names were put on a list which indicated the owners' whose homes were to be burnt. The list was provided by the leadership of the applicant's group in the area. The applicant was part of a large group of persons who created mayhem in the area and were involved in the commission of crimes in particular the burning of homes. This crime can therefore be categorised as public violence.
The Act provides that amnesty shall be granted if the offences for which amnesty is applied for, were committed for political reasons, that full disclosure in respect of the facts related to the commission of the offences is made and that the formalities have been complied with.
The committee is satisfied that the applicant has complied with the requirements of the act in that the offences for which the applicant had made applications for amnesty were motivated by political considerations, that he has made full disclosure in respect of the said offences and that he has complied with the formalities.
In the result the applicant is GRANTED amnesty in respect of:-
(a) The murder of an unidentified male person on or about the 21 August 1992;
(b) The unlawful possession of fire-arms and ammunition during the period 1992 to 1993; and
(c) Public violence committed during the period 1992 - 1993.
DATED AT PRETORIA ON THIS DAY OF 2000.
JUDGE R PILLAY
ACTING JUDGE N J MOTATA
ADV S SIGODI AC/2000/065
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.
SHADRACK PASEKA TWALA APPLICANT
(AM 7987/97)
DECISION
The applicant makes an application in terms of Act 34 of 1995 as amended. He makes an application for the murder of Maria De Freitas, the murder of Karel Engelbrecht, robbery of a firearm from Karl Engelbrecht, the unlawful possession of firearms and ammunition and escaping from custody.
The applicant was at the material times hereto a member of the Azanian Youth League (AYL) in Duduza and attached to the Pan Africanist Congress (PAC). He says that he was taught through the teachings of the PAC that white people were the cause of black people's misery and had taken the land. Furthermore, members of the police supported this system and were therefore regarded as the enemy as well. He learnt this at the numerous PAC meetings and at many gatherings such as political funerals. According to the applicant, the PAC developed a policy of killing white people and policemen.
He testifies that on or about 5 November 1993, Nkosana "Major" Mahlangu, the AYL organiser in the district instructed him to accompany three others to J.F. Supermarket. The applicant took three persons of his choice. They were told to go there at a certain time and rob the owner of the firearms which were reported to be kept in a particular room at the premises of the supermarket. Thereafter they were to kill the victim of the robbery. They went there and were confronted by the owner Maria De Freitas who produced a firearm. The applicant shot her as a result of which she died. He then took her loaded firearm and ran away to the near suburb.
On his way there, the applicant encountered a policeman, Karl Engelbrecht who was sitting in a motor vehicle, with the door ajar.
The applicant testified that he went up to the policeman and shot him as a result of which the latter died. He said that he did so in line with the PAC policy of killing the police, who were the enemy. He shot him without saying a word to him neither did the policeman say anything to him. However in his written application at 9(a)(iv) he stated that since he was in possession of the unlicensed weapon and since the police were regarded as the enemy anyway, the applicant shot him. In a statement to the Committee's investigator, the applicant is alleged to have said that he shot the policeman because he knew that he would be arrested and the fire-arm(s) would be found in his possession.
Nkosana Godfrey Mahlangu testified and denied that he had ever given the applicant instructions to commit any offence as the applicant alleged. His duty as an organiser of the Duduza Branch of the ALY was to arrange workshops and conferences on behalf of the AYL in the district.
He further denied that he denies giving the instruction because he, Mahlangu, was late in applying for amnesty, and that he wanted the applicant to be imprisoned for a longer period.
The applicant did not make a good impression when testifying. He was confronted by a number of contradictions between his verbal testimony on the one hand and his written application and a statement made to the commission's investigator on the other. The contradictions themselves cast a dark cloud on his evidence. But his lack of properly explaining them further detracts from his credibility. In particular his reasons for not explaining a political motive to the criminal court when he pleaded guilty to the murder of the policeman emphasises this. What makes it worse is the fact that he knew at that time of his criminal trial the prospects of applying for amnesty.
The act provides that amnesty shall be granted if the offence(s) for which amnesty is sought, that all the relevant facts related to the committing of the offence(s) and that all the formalities have been complied with, are fulfilled.
For the above reasons the Committee is not satisfied for the above reasons, that full disclosure has been made and nor is the Committee satisfied that the offence(s) were in fact committed for political reasons.
In the result, the application for amnesty is REFUSED.
DATED AT ON THIS DAY OF 2000.
JUDGE R PILLAY
ACTING JUDGE N J MOTATA
ADV S SIGODI AC/2000/066
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.
BONGANI SAVIOUR NGUBANE APPLICANT
(AM 1946/96)
DECISION
The applicant is 35 years old. Before his arrest and conviction he resided in the Umbombo district. He was employed as a driver for a contractor in Empangeni. He was an IFP member. He used to organise the youth to attend meetings but he did not hold any specific position.
The applicant is applying for amnesty for the killing of Mmenezi Nxumalo who was killed in March 1994. He and his co-accused, Alson Mandlenkosi Mavundla were convicted of murder and both sentenced to 10 years imprisonment.
He now applies for amnesty for these offences.
The applicant testified that in 1992 a certain Simon Zikali started recruiting for the ANC. The applicant knew Simon Zikali as somebody who lived in the area.
He testified that on one occasion in 1992, whilst he was filling petrol at a petrol station, Simon Zikali came to him, pointed a gun at him and told him to go to an ANC meeting. He further told him to come the following day with a R100.00 joining fee. The applicant however did not go to the meeting, instead he went to the Chief to report that Simon Zikali had pointed a gun at him. The Chief said he did not know about such a meeting.
One day in June 1993, Simon Zikali, Gedle Gumede and Mmenezi Nxumalo wanted people to come to the streets to toyi-toyi. They were actually forcing the people to toyi-toyi. The applicant did not comply with this request.
According to the evidence of the applicant, on the 25th December 1993 his brother Gibson Ngubane and cousin Velephi Maluleke were killed in the Jobe area. The applicant says that he saw this happening. The people who killed his brother were a group which was led by Simon Zikali and Mmenezi Nxumalo. He testified that Simon Zikali shot his brother and his cousin. Mmenezi Nxumalo chopped his brother's head. Simon Zikali gave an order to the people to slay the corpses.
Some months later in March 1994 the applicant drove to his brother Epson Ngubane at Ndumo near Mozambique. He bought a gun and ammunition in order to be able to protect himself.
When he came back he found that his house had been burnt. He did not know where his children were and whether or not they were dead. He then met Mavundla and Isaac Masango. The following day they decided that they were going to attack Simon Zikali and his gang at night.
They first went to Simon Zikali's house but did not find him there. They proceeded to Gedle Gumede's house. They attacked him but did not succeed in killing him. They proceeded to Mmenezi Nxumalo's house. He was asleep. His wife and children were in the house. The applicant told Mrs Nxumalo to go out with her children which she did. The applicant then shot Mmenezi Nxumalo. As a result of the shooting Nxumalo died. The applicant and his friend then returned to Ndumo.
A few days later, the applicant and Mavundla were arrested. They were subsequently tried and convicted for the murder of Mmenezi Nxumalo. At the hearing of the amnesty application, Simon Zikali gave evidence and denied that he had ever pointed a firearm at the applicant. He denied that he killed the applicant's brother and his cousin. He was on the fringe of the crowd and did not see how they were killed. He said that they were not killed by a political group but by the community at large. They were killed because they were suspected of stock theft from the community. He was not aware of political unrest in the area. He admitted that he was arrested and charged for the murder of the applicant's brother and cousin but was found not guilty and acquitted.
The next witness Jordan Gumede is the Chief of the area. He testified that at the time of the incident he was an Induna to Chief Mankenke. He did not have any knowledge of a meeting which was held at the forest. He knew that there was a problem of stock theft in the area. He said that his predecessor, the previous chief, who had since died, had actually called three meetings to address the problem of stock theft and had also invited the Magistrate to these meetings.
He admitted the applicant had told him that in 1992 Simon Zikali had pointed a firearm at him, and that Simon Zikali had asked him to attend an ANC meeting. He was emphatic that in his area there was neither IFP nor ANC. He said that to date there has been no political strife in the area and was emphatic about this as well. He said that when he heard of the deaths of the applicant's brother and cousin, he reported the matter to the police. He did nothing further in the matter because it was being attended to by the Chief. He did not know whether anybody had been arrested or tried for those murders.
He was aware that the applicant and Mavundla had been arrested for the murder of the deceased which had been committed in the area of another Induna. He emphasised that if there had been political conflict in the area he would certainly have been aware of it. The applicant was afforded an opportunity to cross examine the Chief, but he had no questions to ask.
The central question that has to be decided is whether the killing of the deceased and the attempted murder of Simon Zikali was due to the political conflict in the area between ANC and IFP or whether this arose out of the killing of the applicant's brother and cousin arising out of the stock theft which was prevalent in the area. On this aspect of the matter there was the evidence of the applicant on the question of political violence in the area. As against that there was the evidence of Zikali and Chief Gumede.
After the conclusion of the hearing, the Committee decided that an attempt should be made to ascertain whether the applicants co-accused had filed an application for amnesty.
From the records of the TRC, it appears that he, Mavundla, had not made an application for amnesty, but had made a statement under oath to the Human Rights Violation Committee of the TRC concerning the loss he had suffered as a result of the burning down of his house and its contents.
The contradictions between the two affidavits on a crucial matter is of such a nature that the committee has decided to place no reliance on the evidence of Mavundla.
The committee has come to the conclusion that the evidence of Simon Zikali is reliable. His evidence was corroborated by Chief Gumede. We are persuaded that the community in that area was plagued by stock theft. We accept that the applicant's brother and cousin were killed by members of the community who were angered by the stock theft in that area. If Ngubane was an eyewitness to the killing of his brother and cousin, he has offered no explanation why he was not called to give evidence at the trial of Simon Zikali.
The committee has come to the conclusion that the applicant has failed to establish that the killing of Nxumalo was as a result of political conflict between the IFP and ANC.
He has thus failed to meet the requirements of the Act and accordingly amnesty is REFUSED.
SIGNED AT THIS DAY OF 2000.
JUDGE H E MALL ACTING JUDGE C DE JAGER
ADV S SIGODI AC/2000/067
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.
ELEANOR JANETTE KASRILS APPLICANT
(AM 7725/97)
DECISION
The Applicant, ELEANOR JANETTE KASRILS is GRANTED amnesty in terms of Act No. 34 of 1995 for her involvement in the following acts:
1. Bomb explosion at Central Post Office Durban during December 1962;
2. Theft of Dynamite, near Marionhill, Durban, during 1962 or 1963;
3. Destruction of electricity pylons near Pinetown, Durban, during 1962 or 1963;
4. Bomb explosion at Security Branch offices, Baker street Durban, during 1962 or 1963;
5. Escape from custody at Fort Napier, Pietermaritzburg, during September 1963;
6. Illegal crossing of border to Botswana, during 1963; which are found to be acts associated with a political objective as defined by the Act, and which fall within the ambit of the Act, committed or authorised by her during the period 1962 to 1963 as a member of the African National Congress and on its behalf.
This amnesty does not include any gross violation of human rights.
SIGNED ON THIS DAY OF 2000.
1.
2.
3. AC/2000/068
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.
BASIL FANI MSIBI 1ST APPLICANT
(AM 5617/97)
THUSO PAULOS TSHIKA 2ND APPLICANT
(AM 5962/97)
DECISION
The applicants are Basil Fani Msibi, hereinafter referred to as the first applicant and Thuso Paulos Tshika hereinafter referred to as the second applicant.
Both applicants have applied for amnesty in respect of a number of incidents that took place in KwaZulu-Natal during 1986. The subject matter of the present hearing is:
(a) an attack on the Osizweni Police Station on 10th October 1986 in which both applicants participated and during which two policemen namely Mr Simon Thamsanqa Ndwande and Vusumusi Hezekiah Nene were shot and wounded; and
(b) an explosion at the Glencoe Station, Dundee on 20th September 1986, during which a railway line was damaged but nobody was hurt. The first applicant had identified Glencoe Station as a target and the message that this had to be done was conveyed to one Thembinkosi, (since deceased) the actual perpetrator, by the second applicant upon the order of the first applicant.
There was evidence that the vehicle of one Lebina Ishmael Mazibuko who opposed the application was shot at and damaged at the time of the first incident, but that this shooting had occurred approximately two kilometres away from where the attack on the police station took place. Apart from conceding a possibility that a vehicle driving near the Police Station may have been hit in the cross-fire during the attack on the Police Station, both applicants denied any knowledge of a vehicle or the incident in which the vehicle was allegedly involved. They also denied that they could have been responsible for bullets striking a vehicle two kilometres away from the Police Station. The other victims did not oppose the application. Both applicants gave oral evidence.
The first applicant testified that he had been trained as an MK Soldier, both inside and outside South Africa and that at the time of the incidents under discussion he was the Commander of the second applicant and other members of an ANC cell which had been created in the Newcastle area. First applicant liaised with the command structure of MK in Swaziland who at times approved the targets identified by him. He identified various targets which included the Osizweni Police Station and the Glencoe Railway Station. The Police Station was identified to show that the ANC was there to defend the people's interest and in order to obtain firearms that were stored at the Police Station. He further testified that policemen were seen as legitimate targets in terms of ANC policy and deemed to be the first line in the defence of apartheid. The railway line was targeted in order to bring about sabotage, economic growth and to bring about a diversion of policy resources. It was decided that first and second applicant and Thembinkosi would carry out the attack on the Police Station. Although the attack was planned in a manner to minimise casualties, there was more resistance than had been expected, hence the wounding of the two victims. After the attack the first applicant left for Swaziland. He has never been arrested or charged.
The second applicant, who had been trained as an MK Soldier in South Africa, confirmed the evidence of the first applicant in so far as it related to him. He further testified that he was arrested and charged in the Pietermaritzburg Supreme Court in 1987 and sentenced to 15 years imprisonment. He was later released in terms of general indemnity granted to political prisoners. This indemnity did not however have the effect of expunging his criminal record hence his application for amnesty.
It is not clear whether the indemnity granted to him was granted in terms of The Indemnity Act, 1990 (Act No. 35 of 1990), The Indemnity Act, 1992 (Act No. 124 of 1992) or the Further Indemnity Act, 1992 (Act No. 151 of 1992). It may even be that he received indemnity or parole by virtue of the powers vested in the State President to pardon prisoners. If indemnity was granted in terms of one of the Indemnity Acts referred to above, it would have had the same effect as envisaged by Section 20(7) of Act 34 of 1995. The result would have been that neither the State nor a private person would have been able to hold the applicant criminally or civilly liable in respect of such an act omission or offence.
It would follow that there would not have been an act, omission or offence in respect of which amnesty can be granted because Section 48(2) of Act 34 of 1995 (the Act endowing the Amnesty Committee with the power to grant amnesty) states:
"48(2) Any indemnity granted under the provisions of The Indemnity Act, 1990, The Indemnity Act, 1992, or The Further Indemnity Act, 1992 shall remain in force notwithstanding the repeal of those Acts."
As the Committee, on the evidence before it, cannot decide whether valid indemnity in terms of the acts referred to was granted or whether the State President by virtue of the powers vested in him granted immunity against prosecution or any other form of relief, the Committee nevertheless decided to grant amnesty in terms of Act 34 of 1995. This may be ex abundanti cautela but it could not prejudice any interested party. A refusal of amnesty or a decision not to grant amnesty under the present Act may, however, cause irreparable harm should it transpire that the indemnity testified about was not valid or was not the indemnity envisaged under Section 48(2) of Act 34 of 1995. The fact that the indemnity granted under those Acts did not have the effect of expunging his criminal record would not entitle him to bring an application for amnesty as expungement in itself would not be an offence or delict in respect of which amnesty can be granted if the offence which caused the entry in the records did not exist after the granting of indemnity.
Expungement is the legal consequence of amnesty granted for an offence or delict, it is not something in respect of which amnesty can be granted.
After having considered all the evidence placed before it, the Committee is satisfied that both applicants have complied with all the requirements for amnesty in terms of the Promotion of National Unity and Reconciliation Act 1995, that the offences were committed with a political objective and had made a full disclosure of their participation in the two incidents. The Committee makes no finding in regard to the attack on the vehicle of the witness Mazibuko.
Accordingly, amnesty is GRANTED to:
1. Basil Fani Msibi:
1.1 for his participation in the attack on the Osizweni Police Station in KwaZulu-Natal on the 10th October 1986, and for any offence directly associated with or flowing from this incident. i.e. for his participation in the explosion at the Glencoe Railway Station in KwaZulu-Natal on 20th September 1986 and for any offence directly associated with or flowing from this incident.
2. Thuso Paulos Tshika:
2.1 for his participation in the attack on the Osizweni Police Station in KwaZulu-Natal on the 10th October 1986, and for any offence directly associated with or flowing from this incident. i.e. for his participation in the explosion at the Glencoe Railway Station in KwaZulu-Natal on 20th September 1986 and for any offence directly associated with or flowing from this incident.
We recommend that:
Mr Simon Thamsanqa Ndwande and Vusumuzi Hezekiah Nene are declared victims and referred to the Committee on Rehabilitation and Reparation in terms of the Act.
SIGNED AT CAPE TOWN ON THE DAY OF 2000.
JUDGE C DE JAGER
ADV S SIGODI
ADV F BOSMAN S.C. AC/2000/069
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.
KADAMILE ALFRED TINYANE APPLICANT
(AM 7840/97)
DECISION
The applicant applied for amnesty in respect of the following offences:
1. The robbery of a 9 millimetre pistol on 24th April 1993 at Khuma near Stilfontein, the said pistol having been in the lawful possession of constable Sylvester Setwati.
2. Being in illegal possession of 9 millimetre pistol during the period 24th April 1993 to 2nd June 1993 in contravention of section 2 of Act 75 1969.
3. Contravening section 36 of act 75 of 1969 by being in illegal possession of ammunition during the period mentioned.
4. The robbery of a shotgun on 30th May 1993 at Stilfontein, the said gun having been in the lawful possession of constable Samuel Khumalo.
The applicant was charged and convicted of the offences mentioned under 1, 2 and 3 above while he was acquitted on the charge relating to the shotgun. He, nevertheless, requested amnesty on all four charges. He was sentenced to 7 years imprisonment for the robbery of the pistol, to 1 year imprisonment for the possession of the pistol and to 6 months imprisonment for having the ammunition without a licence. The sentence was handed down on 27th November 1996.
The applicant testified that he was a member of ANCYL - the ANC Youth League during the relevant period. The chairperson of ANC Youth League was James Ntsholela while the youth received instructions from Jimmy Lebakha, a person approximately 24 years older than the applicant.
The applicant at the time when he committed the offences was 21 years old. He further testified that James was on the executive committee of the local ANC and that Jimmy used to report back to ANC Youth League after he had attended ANC meetings and that the latter was the person giving instructions to them. James Ntulela later became mayor of the township and the committee is of opinion that it can be assumed that he fulfilled a leadership role in the organisation at the time. The applicant testified that both Jimmy and James were aware of the robberies soon after it occurred and did not rebuke him. On the second occasion, after the shotgun was robbed, they visited the applicant and his co-perpetrator where they went into hiding in a Roman Catholic church in Potchefstroom where they took possession of the shotgun. The pistol wasn't handed to the organisation but was kept by the applicant for his own use.
The applicant described the circumstances under which the robberies took place. According to him ANC Youth League received a general instruction from Jimmy Lebakha to arm themselves so that they could protect themselves in fighting against the Police and other political rivals like the PAC and IFP. The youth then amongst themselves decided to rob whoever they knew was in possession of firearms.
During the evening of 24th April 1993 Sylvester Setwadi and other Police went to Lily's Tavern, investigating the burning of the house of another policeman. It is therefore clear that at that stage there was antagonism against the Police although Inspector Mogwera in evidence before the committee testified that he wasn't aware of political unrest in the specific area at the time.
The applicant testified that he walked up to Setwadi and grabbed the pistol which was not in the holster, but stuck into his belt, and ran away. He didn't see that Marupe who accompanied him hit the constable in the face the moment he grabbed the pistol. He didn't deny that it could have happened but said he concentrated on the gun. He said Marupe wasn't present when ANC Youth League planned robbing police to get weapons, but he later informed him. According to him Marupe was a M.K. member. He further stated that he kept the weapon because he planned to seek IFP members in the streets and to shoot them. He, however, up to the second robbery didn't do so because they didn't have enough weapons.
Near midnight on 30th May 1993 inspector Mogwera accompanied by constable Samuel Khumalo were patrolling in Khuma when they received a complaint that a woman was misbehaving at Lily's Tavern and was undressing herself. According to Mogwera he remained at the Police van while Khumalo, walked towards the tavern to investigate. Khumalo soon afterwards came back empty handed, reporting that he was robbed of his shotgun. A group of about 20 youngsters approached them and he decided not to fire shots at them but rather to retreat. Khumalo went to the Police station to get assistance while he stayed in the vicinity. He didn't witness the robbery because he stayed behind to look after the police vehicle. The applicant confirmed the robbery but said that the policeman fled when he and his fellow comrades confronted them. They left the shotgun in the Police vehicle where he and Charles found the gun and Charles took it. They then went to Potchefstroom and sheltered in the Roman Catholic church where they were later visited by James Thulela and Jimmy Lebakha to whom they handed the gun. Inspector Mogwera confirmed that the shotgun was found in possession of the civics. The pistol was found hidden in applicant's home.
The applicant's evidence on various aspects was not convincing. The committee took into consideration that he is not a well educated man and not entirely literate. The incidents also happened 7 years ago. It is however clear that the ANC and ANC Youth League, in particular, at least was aware of the robberies and in fact took possession of the shotgun. It is also a fact that there was conflict between the police and the community as evidenced by the attack on a policeman's house.
There is no evidence to contradict applicant's version that the youth were asked to arm themselves. This might have been said without intending that they should rob arms, but it is generally known that robbing policeman didn't carry the disapproval of the political organisations.
In conclusion the committee is satisfied that the offences were associated with a political objective, that the applicant disclosed the relevant facts and that he in the circumstances qualifies for amnesty.
Amnesty is GRANTED to the applicant in respect of the following offences:
1. The robbery of a 9 millimetre pistol on 24th April 1993 at Khuma near Stilfontein, the said pistol having been in the lawful possession of constable Sylvester Setwati.
2. Being in illegal possession of 9 millimetre pistol during the period 24th April 1993 to 2 June 1993 in contravention of section 2 of Act 75 1969.
3. Contravening section 36 of act 75 of 1969 by being in illegal possession of ammunition during the period mentioned.
4. The robbery of a shotgun on 30th May 1993 at Stilfontein, the said gun having been in the lawful possession of constable Samuel Khumalo.
SIGNED AT CAPE TOWN THIS THE DAY OF 2000
JUDGE S MILLER ACTING JUDGE C DE JAGER (SC)
MR J B SIBANYONI AC/2000/070
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.
THEMBINKOSI VIVIAN MABIKA APPLICANT
(AM 7761/97)
DECISION
The applicant applies for amnesty in respect of robbery with aggravating circumstances, attempted murder and the unlawful possession of a 9mm Makarov pistol and ammunition.
The applicant was, on 1 July 1993, convicted in the then Supreme Court, Northern Cape Division, in respect of the abovenamed offences and sentenced to undergo an effective term of eighteen years imprisonment. The incident which gave rise to the charges took place during the morning of 18 January 1992 at the Acme Dry Cleaners in Kimberley. The applicant and five other persons entered the premises with the intention to rob. Ms Sonja Spicer, an employee of Acme Dry Cleaners was shot in the chest and seriously injured during the course of the robbery. According to the trial court record the only item that the robbers stole was a wristwatch which belonged to Ms Spicer.
The applicant was the only person to testify at the hearing of this matter. His evidence may be summarised as follows:
The applicant became a member of the Azanian Peoples Organisation (Azapo) during 1982. He was employed as a union organiser by the Black Allied Construction Workers Union and resided in Johannesburg. He received a telephone call from Hendrik Shimmy Mokgalagadi, a friend and fellow member of Azapo and a trade unionist, who lived in Kimberley. Mokgalagadi told him that Azapo followers were being attacked by supporters of the African National Congress (ANC) in the Kimberley area and that several houses had been burnt down.
The applicant then telephoned Mosibudi Mangena, the commander of the Azanian National Liberation Army (Azanla) who was in Harare, Zimbabwe, and told him of the situation and requested an instruction to fight the ANC. The said Mangena told him that he would consult with Mr Mabuso, a member of the National Executive Committee of Azapo who was based in Johannesburg, and that the applicant should call him back at a later stage. The following week Shimmy Mokgalagadi met with the applicant in Johannesburg and together they decided to obtain money for purposes of purchasing firearms by committing a robbery in Kimberley.
The applicant did not call Mr Mangena back nor did he communicate with Mr Mabuso. He stated that he did not telephone Mr Mangena again "because of the prevailing situation". He thereafter, together with two friends, Rudolf Vundla and Wisdom Vundla, proceeded to Klerksdorp by train where they met Shimmy Mokgalagadi and one Ralph Marutle. They all then proceeded to Kimberley in a motor vehicle.
They decided to rob the Acme Dry Cleaners as they had received information from a driver employed by Acme Dry Cleaners that moneys from various other dry cleaning depots are taken to Acme Dry Cleaners. They expected that if the robbery was successful they would obtain R70 000 to R100 000.
On the morning of 18 January 1992 at approximately 08h30 the applicant, Shimmy Mokgalagadi, Ralph Marutle, Rudolf Vundla, Wisdom Vundla and two friends of Mokgalagadi, namely, Sanky Sehere and Petrus Sehere proceeded to Acme Dry Cleaners in a vehicle driven by Mokgalagadi. Of the seven of them only the applicant and Mokgalagadi were members of Azapo and only those two as well as Rudolf Vundla (who applicant described as being an Azapo sympathiser), knew that the intention was to obtain money to purchase firearms for Azapo. All the others participated in the robbery for personal gain. Mokgalagadi remained in the vehicle outside and the other five entered the premises. The applicant was the only person who was armed. He was in possession of a 9mm Makarov pistol which he had purchased in Johannesburg the previous year. Upon entering the premises they confronted Ms Spicer who was standing behind the counter. The applicant pointed his firearm at her and demanded that she hand over money. She started screaming and Wisdom Vundla went around the counter and took hold of her, trying to put his hand over her mouth. She was told to keep quiet but she carried on screaming. She reached out for the firearm and according to the applicant, a shot was fired accidentally. The bullet his Ms Spicer in the chest and also his Wisdom Vundla's hand. They all ran out of the premises to the waiting vehicle and then drove away from the scene. The applicant denies that a wristwatch was stolen from Ms Spicer and expressed the belief that the taking of the wristwatch was a story that was trumped up by the police.
The stated that their plan was to share amongst themselves any money that they robbed. The applicant would receive twice the share of each of the others as he had the firearm.
Section 20 of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 (the Act) provides, inter alia, that the Committee shall grant amnesty if it is satisfied that the offences to which the application relates are acts associated with a political objective committed in the course of the conflicts of the past and that the applicant has made a full disclosure of all relevant facts.
It is clear from the evidence that the applicant did not participate in the robbery under instruction or orders from any person in Azapo or Azanla. On the contrary, he ignored Mr Mangena's instruction to telephone him back and he made no efforts to communicate with Mr Mabuso. The robbery was committed without the knowledge of any office holder in Azapo. It is also evident from the testimony of the applicant that the majority of his co-perpetrators in the robbery were not members of the Azapo but were involving themselves purely for personal gain. It would therefore be deceptive to refer to the robbery as being an Azapo operation.
On the applicants version the lion share of the proceeds of the robbery would have gone to common criminals and would not have been used for the benefit of Azapo. The reason given by the applicant for involving his co-perpetrators who were not members of Azapo in the robbery, namely, that he wanted strength in numbers, is unimpressive. The fact that the applicant and one of his co-perpetrators were members of Azapo does not persuade us to believe that there motive in participating in the robbery was political. If the object of the robbery was to benefit Azapo it is difficult to understand why the gang constituted to commit the robbery did not consist of persons who were all willing to allow the proceeds derived therefrom to be used for the benefit of that political organisation. The probabilities are that all the perpetrators participated for their own personal gain.
We are, in the circumstances, not satisfied that the crimes committed by the applicant were acts associated with a political objective as contemplated by the Act. The application for amnesty is accordingly REFUSED.
DATED AT THIS DAY OF 2000.
JUDGE S MILLER
ACTING JUDGE C DE JAGER (SC)
MR J B SIBANYONI AC/2000/071
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.
ZAMIKHAYA WELCOME MGANDELA APPLICANT
(AM 7889/97)
DECISION
The applicant applies for amnesty in respect of the crimes of robbery, abduction and the unlawful possession of a firearm and ammunition. All these crimes were committed on 27 November 1993 at the premises of a shop known as Pick Fit and Take in Port Elizabeth.
The applicant states that he joined the Pan Africanist Congress (the PAC) during 1978 and that he became a member of the Azanian Peoples Liberation Army (APLA) after receiving training in Transkei during 1992.
He says that during November 1993 he was approached by his commander, one Wellington Sam, who informed him that they were to carry out a mission. The stated purpose of the mission was to rob money which would be used by the PAC in its efforts to contest the general elections. They reconnoitred the premises of Pick Fit and Take. Thereafter, on 27 November 1993, the said Sam came to him in the company of two other persons, namely, Bongani Mbekiswa and one Bomba. Sam gave them each a firearm and they proceeded to the premises of Pick Fit and Take. It was part of their plan that they would steal a get-away vehicle at the scene of the crime.
The applicant stated that it was his function to stand at the door of the premises and to allow persons to enter but to prevent anybody from leaving the shop. While so doing he saw a man alight from a vehicle and approach the shop. He was carrying a brown plastic bag. The applicant says he allowed him to enter the shop and when in, he pointed his gun at the man and took possession of the plastic bag. The applicant's three companions were all in the shop while the applicant was at the door. All the employees and customers who were in the shop were, after a while, taken to and locked up in a vault.
The motor vehicle keys of the man from whom the applicant took the plastic bag were taken by one of the applicant's companions. All of the applicant's companions fled the shop and went to the vehicle. Applicant says that Sam gave him an order to remain at the door until he gave him a signal to come to the vehicle. The police arrived on the scene and the vehicle in which the applicant's companions were drove off. The applicant was arrested by the police while he was still in possession of both his firearm and the plastic bag. The plastic bag was found to contain an amount of R6 858.81.
The applicant was not a satisfactory witness and we are not satisfied that he gave a truthful account of events. It is clear from the judgment that was delivered at his trial that the amount of R6 858.81 was not taken from Mr Burbidge, who was the man who applicant said he took the bag from. All that was stolen from Mr Burbidge was his wristwatch, wallet, car keys and motor vehicle. The amount of R6 858.81 was in the custody of a Mrs A Booysen an employee at Pick Fit and Take, and was removed from under the cash till.
We also do not accept the applicants evidence that he was an APLA cadre and that the robbery was an APLA operation. The applicant had scant knowledge of the then leadership of APLA and the PAC. He did not even know who the APLA Director of operations was.
After considering the evidence of the applicant and the documentation that has been placed before us we are not satisfied that the applicant committed the crimes with a political objective and we are also not satisfied that he has made a full disclosure of all relevant facts. The application for amnesty is REFUSED.
DATED AT THIS DAY OF 2000.
JUDGE A WILSON
JUDGE S MILLER
JUDGE N J MOTATA AC/2000/072
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.
SITHEMBISO VANANA APPLICANT
(AM 6540/97)
DECISION
The applicant applies for amnesty in respect of the murder of Mrs Jane Sophia Rossouw, aged 72 years, the attempted murder of Mr Casper Gabriël Rossouw, aged 81 years, robbery, housebreaking with the intent to steal and theft and theft of a motor vehicle, which offences were committed on 1 August 1993 on the farm known as Sarahsdale in the district of Dordrecht.
The applicant was born and grew up on the farm Sarahsdale. He states that he joined and became a card-carrying member of the Pan Africanist Congress (the PAC) during 1992 when he was fifteen years of age. Thereafter, during 1993, he says that he had a desire to join the Azanian Peoples Liberation Army (APLA), the armed wing of the PAC. He spoke to one Nelson Gebe, who he alleges was an APLA cadre, about joining APLA. Gebe informed him that he would have to undergo military training in Transkei and that he, Gebe, knew a person in Butterworth who would be able to make the necessary arrangements for applicant to be trained.
They had no money to get to Transkei and they, together with one Simphiwe Mantyi, decided to "raise funds" by robbing the Rossouws on Sarahsdale farm. The three of them proceeded to the farm in the early hours of the morning on 1 August 1993. Gebe was armed with a firearm and the applicant and Mantyi had knives. The applicant broke into a storeroom on the farm and stole a pair of pliers which were used to cut the telephone lines. At approximately 08h00 Mr Casper Rossouw came out of the farm house and walked towards his motor vehicle. The applicant and Mantyi accosted him and demanded money and firearms. Gebe entered the house. Mr Rossouw told them that he did not have any money or firearms and both the applicant and Mantyi stabbed him.
The applicant stated that he then heard the sound of a shot being fired by a firearm. On entering the house he saw that Mrs Rossouw had been shot by Gebe. They then unsuccessfully searched the house for money and firearms. They then took the keys of the Rossouws' motor vehicle, got into the vehicle and drove to Transkei.
They went to Butterworth but were unable to make contact with the person Gebe said would arrange for applicant's training. They then went to Idutywa where they stayed for approximately six weeks. During this period applicant states that they made various attempts to communicate with Gebe's contact in Butterworth and also left several messages for him to communicate with them. All their efforts in this regard were fruitless. No attempt was made by them to get in touch with any other member of the PAC or APLA in Transkei.
While in Idutywa they sold the Rossouws vehicle for R5 000.00. They used this amount derived from the sale for their own benefit. They also robbed a bottle store and hijacked a motor vehicle. Shortly after hijacking the motor vehicle they were chased by the police who shot at them. The applicant was hit and injured. He was arrested and detained in hospital where he received treatment.
The applicant escaped from hospital and went to Cape Town. When in the Cape Town area he, together with some other persons, committed another murder. He murdered a Mr van Niekerk on a smallholding. The applicant was eventually arrested in the Cape Town area while in the process of robbing a shop.
Section 20(1)(a) of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 (the Act) provides that the Committee must grant amnesty if it is satisfied inter alia, that the offences to which the application relates are acts associated with a political objective committed in the course of the conflicts of the past and that the applicant has made a full disclosure of all relevant facts.
The applicant was a most unsatisfactory witness. His testimony was riddled with contradictions, not only within itself but also with previous statements made by himself. We can place no reliance on his evidence, particularly in so far as it relates to him having a political objective in committing the crimes which are the subject of this matter.
There is no corroboration that applicant was ever a member of the PAC. He states that he lost his membership card when being chased by the police in Transkei and there is no evidence before us, other than his assertion, that he is or was a member of the PAC. We are also of the view that the applicant's evidence that Gebe was an APLA cadre is both untruthful and improbable. Gebe has a criminal record which reflects that he has, from June 1973 to March 1988, twenty nine previous convictions and that he has on four occasions been declared an habitual criminal. During late 1993 both the PAC and APLA were openly functioning in Transkei and it is therefore highly improbable that Gebe, if he was an APLA cadre, would have been unable to introduce applicant to those organisations in Transkei during the six weeks that they spent there - particularly so bearing in mind the fact that Gebe was from Transkei.
It is also apparent from applicant's own version, untrustworthy as it is, that the proceeds from the sale of the Rossouws' vehicle was used for the perpetrators own benefits and not for the benefit of any political organisation.
We are of the conclusion that the crimes committed by the applicant were committed for personal gain.
We are accordingly not satisfied that the offences were committed with a political objective as envisaged by the Act or that the applicant has made a full disclosure of all relevant facts.
In the result, the application for amnesty is REFUSED.
DATED AT THIS DAY OF 2000.
JUDGE A WILSON
JUDGE S MILLER
JUDGE N J MOTATA AC/2000/073
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.
NKOLISEKO LONKI MBANGI APPLICANT
(AM 0424/96)
DECISION
The applicant applies for amnesty in respect of the murder of Samuel Daniel Barnard and attempted robbery, which crimes were committed on 20 November 1992 at Rooihoogte.
The applicant, when testifying at the hearing of this matter, stated that he joined the Azanian Peoples Liberation Army (APLA) during 1985. He stated that he was approached by his commander, one Mziwabantu Stokwe, who told him that they were going on a mission to get money and firearms. The applicant then recruited three other people to assist in the operation, namely, Mncedisi Mbotya, Mzwabantu Stokwe (not to be confused with the commander, Mziwabantu Stokwe) and Luyanda Madola. The applicant did not tell the persons he recruited that the robbery was an APLA mission and none of the said persons were members of APLA.
On 20 November 1992 the applicant, his commander, the aforesaid three recruits and one Totosi Stokwe, the brother of the commander, who applicant only mentioned for the first time when being cross-examined by the victims legal representative, proceeded to Rooihoogte where Samuel Daniel Barnard (hereinafter referred to as "deceased") was selling goats and sheep from a truck. The commander was armed with a firearm and the others with knives. The applicant and his commander approached the deceased. The commander pointed his firearm at the deceased who also then produced a firearm. The commander then shot and killed the deceased.
The applicant stated that he then took the deceased's firearm and as they were leaving the scene a man who was standing at a nearby farmhouse, who applicant said was the deceased's son, fired a shot at and killed the commander. The applicant then shot at the man and fled the scene. He said that he lost the deceased's firearm in the veld when he was fleeing.
Petrus Frederick Barnard, the deceased's son, also testified at the hearing of this matter. He stated that he was not present at the scene when his father and the commander were shot. He arrived at the scene only after the shootings had taken place. He stated that he found the deceased's firearm in the truck on the floor next to the gear lever.
The applicant and the three persons he says he recruited were later arrested. They were all charged with murder and attempted robbery. The applicant was convicted on both charges, Mncedisi Mbotya was convicted on the charge relating to attempted robbery only and both Mzwabantu Stokwe and Luyanda Madola were found not guilty and discharged.
The evidence of the applicant was unsatisfactory in many respects. In the application form submitted by the applicant when he first made application for amnesty he stated that the attack on the deceased was made in furtherance of the slogan "kill the farmer" and that no one ordered the operation. This is contradictory to the testimony he gave at the hearing of this matter. He also stated in his testimony that one Mandu Befile, his commander's commander, had authorised his commander to carry out the operation. A statement submitted by the said Mandu Befile to this Committee states that he was not an APLA Commander. The applicants evidence relating to the taking of the deceased's firearm has also been directly contradicted by that of the deceased's son who testified that the firearm was recovered at the scene of the crime.
His evidence also, in our view, contains a number of improbabilities, the most significant of which is the fact that the majority of the persons that he says was involved in the attack were unaware that it was an APLA operation. It is most improbable that if the attack was an APLA operation that persons who were not members of APLA would be taken on the mission. The applicant also stated that he did not know the APLA structures as he was never informed of them. It is, to our minds, improbable that he was an APLA cadre as political education was an integral component of the training of cadres.
We are, after careful consideration of all the evidence before us, not satisfied that the crimes committed by the applicant were acts committed with a political objective.
We are also not satisfied that the applicant has been truthful in his testimony or that he has made a full disclosure of all the relevant facts.
In the circumstances the application does not succeed and amnesty is REFUSED.
DATED AT THIS DAY OF 2000.
JUDGE A WILSON
JUDGE S MILLER
JUDGE N J MOTATA AC/2000/074
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.
MPHATHISWA GODRATIUS MALUNGA APPLICANT
(AM 6537/97)
DECISION
The applicant applies for amnesty in respect of the torture of Mr Thethinene Joe Jordan on 2 September 1985 at the Duncan Village police station, East London.
During 1985 the applicant was a Sergeant in the South African Police attached to the Criminal Investigation Department (the CID) and stationed at Fleet Street, East London.
On 2 September 1985 the applicant and two of his colleagues, Warrant Officer Ivan Höll and Sergeant James Hartley were doing investigative work in the Mooiplaas area. They returned to their Fleet Street office in the evening and the applicant was given a docket relating to Mr T J Jordan who had been arrested earlier that day and who was being detained in the cells at the Duncan Village police station.
At that time there was a great deal of political violence taking place in Duncan Village. Riots were common place and commercial vehicles entering into the area were stoned and damaged. Mr Jordan had been arrested in Duncan Village on a charge of public violence.
The applicant, together with the said Höll and Hartley then proceeded to the Duncan Village police station in order to interrogate him about his political activities. They took Mr Jordan from the cells to an office where they started to question him. They were not satisfied with the answers they received. They then commenced to assault and torture him. He was made to lie on the floor. Höll sat on his back and hit him with his bare hands on the back of the head while the applicant repeatedly hit him on the soles of his bare feet with a stick. Höll then produced an electric shock device which he had in the boot of his car. Electric shocks were then administered to Mr Jordan's legs and private parts. Mr Jordan was then returned to the cells and the applicant and his two colleagues then left the Duncan Village police station.
The applicant played no further role in the investigation of the charge against Mr Jordan as the docket was transferred to the Security Branch of the police for further investigation.
The applicant stated at the hearing of this matter that he willingly participated in the torture of Mr Jordan as Mr Jordan was suspected of being a member of the African National Congress, which was then a banned organisation, and that he, the applicant, was committed, as a policeman faithful to the government of the day, to do his utmost to combat the political violence.
Mr Jordan does not oppose the applicant's application for amnesty. He and the applicant have reconciled their differences and are now friends.
We are satisfied that the applicant has made a full disclosure of all relevant facts. We are also satisfied that the applicant's participation in the torture of Mr Jordan was an act committed with a political objective as envisaged by the provisions of section 20 of the Promotion of National Unity and Reconciliation Act, No34 of 1995.
The application therefore succeeds and the applicant is GRANTED amnesty in respect of the role played by him in the torture of Mr Thethinene Joe Jordan on 2 September 1985 at the Duncan Village police station. We are of the opinion that Mr T J Jordan is a victim and this matter is referred to the Committee on Reparation and Rehabilitation for consideration.
DATED AT THIS DAY OF 2000
JUDGE A WILSON
JUDGE S MILLER
JUDGE N J MOTATA AC/2000/075
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.
ZAKHELE AMOS ZULU APPLICANT
(AM 2099/96)
DECISION
The applicant applies for amnesty in respect of the murder of Babulo Joseph Mthethwa, Hlaluhlomile Alphios Mabaso, Sitezi Dadada Ndimande and Johannes Hlatshwayo and the attempted murder of Msawenkosi Cele and Joseph Mphikiseni Nojiyeza.
The applicant states that during 1992 he was the youth organiser of the Inkatha Freedom Party (the IFP) at Isitengi in the Matata area of Ndwedwe. He testified that political conflict between supporters of the IFP and the African National Congress (the ANC) was prevalent in the Matata area and that during or about July 1992 a large number of ANC supporters from Ngonweni, which is also in the Matata area, attacked and killed a Mr Luthuli who was an IFP supporter and the father of applicant's friend Linda Luthuli. After that attack the applicant left the Matata area and went to reside in Lindelani. He stated that just before February 1993 he was approached by one Bhuquza Mbonambi, a local leader of the IFP, who instructed him to arrange an attack on the Mthethwa house at Ngonweni which was an ANC stronghold. Thereafter, on 2 February 1993, the applicant, Linda Luthuli, Zitha Zulu and Ndumiso Songweni, all IFP supporters, proceeded to the Mthethwa house at Ngonweni. The applicant, Linda Luthuli and Zitha Zulu were each armed with a knife and a firearm and Ndumiso Songweni was armed with a spear and a firearm.
They arrived at the Mthethwa house at approximately 15h00 and saw a group of approximately twenty people sitting under a tree. They attacked this group by charging in and stabbing randomly at their victims. They then fled from the scene, firing shots into the air. Hlaluhlomile Alphios Mabaso, Babulo Joseph Mthethwa, Sitezi Dadada Ndimande and Johannes Hlatshwayo were all killed in the attack. Msawenkosi Cele and Joseph Mphikiseni Nojiyeza were both inflicted with bodily injuries.
Linda Luthuli also testified at the hearing of this matter. He stated that he was an IFP supporter and confirmed the applicant's evidence that there was political conflict between the ANC and the IFP in the Matata area. He left the area and went to reside in a hostel at KwaMashu after his father, a Mr Sithole and a boy from the Zulu family were killed by ANC supporters during July 1992. His evidence regarding the instruction to attack and the actual attack on the Mthethwa house was in line with that of the applicant. He explained that he did not apply for amnesty in respect of the attack as he was illiterate.
Both the applicant and Linda Luthuli were arrested shortly after the attack. They stood trial, were convicted and sentenced. Applicant was sentenced to an effective term of imprisonment of twelve years and Luthuli received an effective term of imprisonment of fourteen years.
Konakwakhe Elliot Shangase also testified at the hearing of this matter. He is presently an induna in the area concerned. He stated that there was never any political strife or conflict in the area. He knows the applicant well and he knows him to have been a member of a criminal gang which caused havoc in the area. According to him the conflict in the area was caused by the criminal activities of the gang. He stated that the applicant and his other gang members, including Linda Luthuli, raped girls, broke into houses and generally terrorised the inhabitants of the area. Various meetings were held in an endeavour to resolve the problem, but the applicant and Linda Luthuli who attended some of the meetings were disobedient and didn't listen. Matters came to a head when a boy by the name of Khali Shozi was shot and killed by Linda Luthuli. The killing of Khali Shozi was reported to the induna and the police and a number of local residents then went searching for Linda Luthuli. They went to the Luthuli homestead where violence erupted, during the course of which Mr Luthuli, the father of Linda Luthuli, and a Mr Sithole were killed. Some months later, on 2nd February 1993, the witness received news that an attack had been carried out at the Mathethwa household. He immediately went to the scene. He was told who the attackers were and the matter was reported to the police. He denies that the applicant, was ever an IFP youth organiser and avers that there was no formal IFP structures in the area. He is adamant that the attack at Mathethwa's house was not politically motivated and contends that it was nothing more than a criminal act.
Masawenkosi Cele also testified. He stated that he was not a member of any political party of movement and confirmed Mr Shangase's evidence that there was no political activity in the area at the time in question. He was present at the Mthethwa's house when it was attacked. He stated that he had accompanied his father there and that people were sitting under a tree drinking when the attack occurred. He was stabbed in the back during the attack. He stated that the people gathered at Mthethwa's house for purely social reasons and denied that it was a political gathering.
One of the essential criteria to be satisfied in the granting of amnesty is that the crime committed by the applicant is in act associated with a political objective committed in the course of the conflicts of the past. It can be seen from the above brief synopsis of the evidence that in this regard we are confronted with two conflicting versions. On the one hand the applicant and his witness contend that the motivation for the attack was political and that they acted on the instruction of a political leader and on the other hand a victim and a local resident contend that politics didn't play a role and that the attack was nothing more than a criminal act.
The evidence of both the applicant and his witness, Linda Luthuli, must be approached with caution. It is apparent from the judgment that was delivered at their trial that they raised an alibi as their defence and testified that they were not present when the attack was carried out. They are accordingly not averse to committing perjury.
The evidence of the applicant was not satisfactory in regard to the instructions he received from Bhuquza Mbonambi. In response to questions contained in the application form for amnesty relating to whether the offences were committed in execution of an order and who gave the order, the applicant stated that such questions were not applicable. It was only later in response to a request for further particulars that the applicant wrote a letter to the Commission in which he stated that the instruction was given by Mr Bhuquza Mbonambi who, he says, was killed three months after his, the applicant's, arrest, and that the instruction was "that we must/should kill any ANC members in that particular area". However, in his evidence given at the hearing he stated that Mbonambi informed him that people should be killed at a certain place and that they will be found at Mthethwa's house.
These contradictions devalue applicant's credibility as a witness and cast serious doubt on his assertion that he was instructed to attack his victims and, in turn, that the attack was politically motivated. These doubts are heightened when the evidence of the applicant and Linda Luthuli is weighed against that of Konakwakhe Shangase and Msawenkosi Cele. Both Messrs Shangase and Cele were, in our view, good witnesses who gave their evidence in a forthright manner. We, after careful consideration of all the evidence, accept the evidence of Messrs Shangase and Cele as being reliable and the truth and reject that of the applicant and Linda Luthuli as being false.
We are accordingly not satisfied that the applicant committed the crimes in furtherance of a political objective or that he has made a full disclosure of all relevant facts.
The application for amnesty is therefore REFUSED.
SIGNED AT CAPE TOWN THIS THE DAY OF 2000
JUDGE S MILLER
MR J B SIBANYONI
MR I LAX AC/2000/076
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.
NELSON NKOSANA SIQHOLA APPLICANT
(AM 6534/97)
DECISION
The applicant applies for amnesty in respect of the torture of several people and also in respect of an incident which took place near Willowvale on 21st January 1987.
The applicant was born, brought up and educated in the rural areas of the district of Qumbu. After leaving school he joined the Transkeian Police Force and underwent his basic training at the police college in Umtata. He states that at that stage he was politically naive and was almost completely ignorant of matters political both in Transkei and South Africa. After completing his basic training he was deployed in the Security Branch as a constable. He first served duty at Port St. Johns and thereafter at Libode, Lady Frere and Tabankulu before being posted to Umtata during 1984.
During his initial period of service he, from time to time, was obliged to attend lectures where he was indoctrinated and, inter alia, taught that members and supporters of the African National Congress (the ANC) and other liberation movements were the enemy.
Part of his duties when stationed as a constable at the Umtata Security Branch was to effect the arrest of persons against whom warrants of arrest had been issued by commissioned officers in terms of section 47 of the Transkeian Public Security Act, No. 30 of 1977. Persons arrested were then detained under strict conditions and subjected to interrogation. The applicant testified that he never interrogated a detainee alone and that all interrogations were undertaken in the presence of a number of security policemen, including senior officers. Interrogations almost variably involved torturing the detainee.
The applicant freely admitted to participating in such tortures and described a number of methods of torture that were resorted to. These included the so-called helicopter method (whereby the victim was cuffed by ankles and wrists to a pole and made to suspend upside down between two tables), the canvas bag method (where a canvas bag would be filled with water and then placed over the head of the victim), hitting and punching the victim, forcing victims to hold a chair in the air until he or she collapsed from exhaustion, forcing the victim to do strenuous physical exercises for an inordinate length of time and forcing victims to kneel against a wall for long periods.
The applicant admits to having tortured a large number of persons. He cannot recall the names of all his victims, but those that he can remember are Dugard Maqhekeza (now deceased), Archie Mayekiso, Thobile Ndlaku, the Ntshobane brothers, Manelisi Nyoka, Edgar Zothe and his brother, Nomonde Matoti, Mvulu Mtimkulu, Sisa Ndamase, Boy Jafta, Mbeko Mnyatheli, Tom, Toto Maqwentshu, Dr Nombe (now deceased), Pambili Jizana, Xola Ntsikilane, Ernest Tsotsi and Somwabo Mbekela.
All these tortures took place during or about 1986 and 1987.
The applicant also testified about the events which took place on or about 21 January 1987 at the premises and shop occupied by the Jafta family in the district of Willowvale. On that day the applicant was part of a joint force, consisting of policemen and soldiers which proceeded to the premises occupied by Mr and Mrs Jafta in search of certain MK cadres who were suspected of hiding there. During the operation the Jafta premises were destroyed and their shop was looted. It is apparent from the evidence of the applicant that he played no role in the destruction of the property or the looting of the shop as he was not in the close vicinity of the premises at the time. He had taken up a position some distance away near a forest and was unaware, either before or at the time, of the actions of those who caused the damage to the premises and who looted the shop. We are of the view, and it has been conceded by Mr Dukada, who appeared for the applicant, that the applicant does not qualify for amnesty in respect of the events which took place on or about 21st January 1987 at the Jaftas' premises in the district of Willowvale.
With regard to torturing of the persons mentioned above, we are satisfied that the offences committed by the applicant were acts associated with a political objective as envisaged by the provisions of section 20 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 (the Act). The applicant, at all times, committed such crimes in the performance of his duties as a policeman on the instruction of and with the knowledge of his superiors. The victims were all political detainees and were tortured with the intention of extracting information from them which could be used by the security branch against their political opponents.
We are, after careful consideration, also of the view that the applicant has made a full disclosure of all relevant facts as required by the Act. Certain statements have been made by or on behalf of some of the victims which reflect that the applicant tortured them in a manner not entirely in accordance with the description given by the applicant (e.g. burning with cigarettes, pouring water down nostrils, dunking head into water and suspending upside down from the ceiling). In certain instances the applicant denied that such methods were used in his presence and in others he stated that he may have forgotten as the events occurred a long time ago. The applicant has confessed to having indulged in atrocious acts of torture which, in some cases, resulted in serious and lasting injury, both physical and psychological, to his victims and we are of the opinion that the aforementioned differences as to the modes of torture used are not so damaging as to be fatal to the application.
The applicant is accordingly GRANTED amnesty in respect of the assault and torture of Dugard Maqhekeza, Archie Mayekiso, Thobile Ndlaku, the Ntshobane brothers, Manelisi Nyoka, Edgar Zothe and his brother, Nomonde Matoti, Mvula Mtimkulu, Sisa Ndamase, Boy Jafta, Mbeko Mnyatheli, Tom, Toto Magwentshu, Dr. Nombe, Pambile Jizana, Xola Ntsikilane, Ernest Tsotsi and Somwabo Mbekela at or near Umtata during 1986 and 1987.
We are of the opinion that the persons mentioned in the preceding paragraph are victims as contemplated by the Act and this matter is referred to the Committee on Reparation and Rehabilitation for consideration.
SIGNED AT CAPE TOWN THIS THE DAY OF 2000
JUDGE S MILLER
MR J B SIBANYONI
MR I LAX AC/2000/126
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.
HEINRICH ENCKHAUSEN BöHMKE APPLICANT
(AM 7566/97)
DECISION
Amnesty is hereby GRANTED to the Applicant in respect of the following offences committed on or about 19 April 1993 at or near Roodepoort, Gauteng:
1. Damaging the offices of the Conservative Party in an explosion;
2. Unlawful possession of explosives.
DATED AT CAPE TOWN THIS DAY OF 2000. AC/2000/127
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.
WILLEM DAWID LOUW APPLICANT
(AM 7751/97)
DECISION
Amnesty is hereby GRANTED to the Applicant in respect of the following offences committed on or about 19 April 1993 at or near Roodepoort, Gauteng:
1. Damaging the offices of the Conservative Party in an explosion;
2. Unlawful possession of explosives.
DATED AT CAPE TOWN THIS DAY OF 2000. AC/2000/128
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.
MUZIVUKILE CURNICK NDLOVU APPLICANT
(AM 5952/97)
DECISION
Amnesty is hereby GRANTED to the Applicant for the offences of sabotage committed during or about the period December 1961 to June 1963 at or near Durban, KwaZulu-Natal.
DATED AT CAPE TOWN THIS DAY OF 2000.
AC/2000/129
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.
NTSUMBEDZENI ALSON TSHITAHE APPLICANT
(AM 2364/96)
DECISION
Having considered the application for amnesty, it is ordered as follows:
1. Amnesty is hereby GRANTED to the Applicant in respect of the following offences:
1.1 arson in respect of government vehicles committed during or about June 1976 at or near Sibasa Area, Venda;
1.2 arson in respect of government school buildings at the place and time referred to in paragraph 1.1 above;
1.3 terrorism more fully set out in Pietersburg Magistrate's Court Case No. RC166/78;
1.4 sabotage more fully set out in Pietersburg Magistrate's Court Case No. RC167/78.
2. Amnesty is hereby REFUSED for the offences of Robbery and the Unlawful Possession of Firearms and Ammunition in respect whereof Applicant was convicted and sentenced in the Thohoyandou Regional court under Case No. RC63/92.
DATED AT CAPE TOWN THIS DAY OF 2000.
AC/2000/130
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.
MOSES OFENTSE BUSHY KELOBONYE APPLICANT
(AM 7731/97)
DECISION
Amnesty is hereby GRANTED to the Applicant in respect of the following offences committed on or about 19 April 1993 at or near Roodepoort, Gauteng:
1. Damaging the offices of the Conservative Party in an explosion;
2. Unlawful possession of explosives.
DATED AT CAPE TOWN THIS DAY OF 2000. AC/2000/131
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.
JULY-MABHOKO MTSWENI 1ST APPLICANT
(AM 474/96)
SPEELMAN ERNEST MTSWENI 2ND APPLICANT
(AM 3300/96)
JOHANNES JABULANI MAHLANGU 3RD APPLICANT
(AM 7461/97)
PHILLIP MFULATHELWA MTSWENI 4TH APPLICANT
(AM 0313/96)
CHARLES MICHAEL SKOSANA 5TH APPLICANT
(AM 0650/96)
DECISION
This in an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The five Applicants apply for amnesty in respect of the murder of an elderly lady, Emmah Mtsweni ("the deceased") on the 1st January 1991 at Section "B", Pietskraal (former KwaNdebele), a rural area in the Mpumalanga Province. This was a witchcraft related killing. Applicants were the only witnesses at the hearing.
The First Applicant, July Mabhoko Mtsweni testified that at all material times he was a supporter of the African National Congress ("ANC"), that he attended meetings of the ANC whenever he was at his home.
Fourth Applicant, Phillip Mfulathelwa Mtsweni, was then called to testify. He stated that both First and Second Applicants are his brother's sons and that his father and the deceased's husband are brothers. He was a follower and supporter of the ANC.
Second Applicant, Speelman Ernest Mtsweni, confirmed that Fourth Applicant is his uncle and that First Applicant is his brother. He was a supporter of the ANC and grew up at Pietskraal, under the influence of tribal leaders, traditional healers and chiefs. He attended ANC meetings and participated in protest activities such as consumer boycotts.
Third Applicant, Johannes Jabulani Mahlangu, was a card carrying member of the ANC Youth League ("ANCYL"). He actively participated in its activities such as boycotts. He joined the UDF in 1987 or 1988.
Fifth Applicant, Charles Michael Skosana, testified that he was a supporter of the ANC. He used to attend rallies and meetings. He stated that he was also a member of Intando Yesizwe (IYP) an affiliate of the ANC. the IYP was active in his area. He spoke of a conflict which existed between Mbokodo, a vigilante grouping, on the one hand and IYP and the ANC on the other hand. In meetings they were told that they were opposing Mbokodo. Skosana stated further that there was also a civic organisation in Pietskraal which was affiliated to the SA National Civic Organisation (SANCO); that in 1988 the civic organisation instructed that the problem of witchcraft in the area of Pietskraal had to be eradicated.
For the sake of convenience all of the Mtswenis will be referred to by their first names in this decision. The other parties will be referred to by their surname.
The evidence adduced before the Amnesty Committee was that both the father and mother of July and Speelman passed away, in quick succession. The deceased came to their home and confronted them with allegations that they have apparently made to the effect that she was a witch who had caused their parents' death. This they denied and demanded to know her source. She left without disclosing who told her so.
After this incident, the Mtsweni brothers received a letter from Chief Makhoko summoning them to his tribal court. They attended the "hearing" relating to the allegations ascribed to them by the deceased. They again demanded to know her source. The dispute remained unresolved.
Later they received another letter summoning them to Mashiane, a junior chief at Pietskraal where the matter was again unsuccessfully addressed. Here it was agreed that the dispute should be taken to Maguduza, a traditional healer (isangoma, Mloi or ngaka or inyanga). The aim was to find out who was accusing the deceased of being a witch.
On their first visit to the traditional healer they could not be assisted because they did not make an appointment. They then agreed upon a later appointment. However, before they could go on the agreed date, the children of the deceased approached the Mtsweni brothers and indicated that they would not attend at the traditional healer chosen by the Mtsweni brothers. They had decided to take the matter to the comrades at Kwaggafontein, KwaNdebele and that the comrades would be brought to Pietskraal to burn down the Mtsweni house.
Selinah, the Mtswenis' sister, reported the threat to Sekwati and Scotch, the local ANC leaders. The two leaders called a meeting and fetched the children of the deceased. It was re-arranged that the parties should go to the Sangoma. When the agreed date came, a meeting was convened at a local school attended by between 200 and 300 people. The deceased and her children did not show up.
At this stage the matter was completely in the hands of the comrades who took control of it and dictated how it should be handled.
The meeting resolved that the deceased should be fetched from her home. July drove his uncle's bakkie to fetch her. Phillip accompanied them driving another bakkie. She was not found at her home but her children stated that she had gone to her brother in Vaalbank. The children were forced into Phillip's bakkie and the two bakkies drove to Vaalbank.
On the way, at Waterval petrol was purchased to fill the bakkie and some petrol was kept in a 5 litre container. July had become angry and decided that Emmah should be burnt. She acted suspiciously by having gone to Vaalbank.
The deceased was taken forcibly out of the house in Vaalbank where she was hiding and put in one of the vans. The vans drove back to Pietskraal. They stopped at the school where the crowd of about 200 to 300 people had gathered. They suspected that the police might be following them. They had a short discussion and then moved to a nearby mountain.
July suggested to Phillip that they should take the bakkies home because they would be a hindrance if police would come. They did this. July left the 5 litre petrol with a certain Victor Ntuli.
As July and Phillip were reaching their home to leave the vans there, police arrived and arrested them. They tortured them and demanded to be shown where they had dropped the deceased. They took the police to the place in question. As they were approaching the mountain they noticed a fire. The deceased was burning. The police who went closer, reported that she was dead. Phillip confirmed the evidence tendered by July. He also confirmed his understanding of the role of Ngaka and Mloi, the latter being a person who is capable of causing harm, injury or death to another person by supernatural means. It is someone who is evil. He believes in witchcraft. Mlois bewitched people who were involved in the liberation struggle. He became involved in the issue when the group went to the junior chief, Mashiane. He also accompanied them to Maguduza.
He confirmed what July testified about him. He emphasised that things go out of hand when comrades were called. Before the comrades got involved in the matter, he regarded it as a family matter.
Speelman arrived at the school after the meeting had finished when the multitude was on its way to the mountain. He then described what happened once they had reached the mountain. The deceased was questioned as to who else was involved in witchcraft. People were running, toyi-toying, chanting "Tambo" and "wajika-jika siyakotha"; the latter song meaning if you do not tell the truth, we burn (necklace) you. The deceased admitted that indeed she bewitched the Mtsweni parents. She named a certain Mahlangu as the person who provided the muti (poison). Some comrades left to fetch Mahlangu.
Victor Ntuli gave the 5 litre petrol to a certain Fanya who poured petrol over the deceased and Richard Skosana also followed suit. Speelman also participated in this exercise. He did not see the person who lit the match but the box was with Charles Skosana. Speelman further testified that he believed that a witch should be killed because the witch was evil and an obstacle to development.
He further testified that Scotch and Sekwati decided that the deceased should be killed after confessing to having bewitched the Mtsweni parents.
Jabulani Mahlangu testified that he became aware of the discussions regarding the deceased and concerning witchcraft in the last meeting. He accompanied those who had gone to fetch her. He confirmed everything said by the previous witnesses. He took the deceased out of the car and left her in the hands of the comrades. Thereafter he did nothing.
Charles Skosana testified that the deceased and her family were supporters of Mbokodo which was oppressing the UDF. Members of Mbokodo used to go to her house during the night. He explained that Mbokodo was an organisation run by businessmen and was working with whites who owned companies. Some of the Mbokodo members were informers spying on different people. After petrol was poured on the deceased, one Jan asked him whether he had a match. After he answered in the affirmative, he was ordered to set the deceased alight, which he did.
Some of the Applicants stated that the dispute between the deceased and the Mtsweni brothers started as a family affair. The evidence leader, Ms Mtanga, argued and submitted that because of this factor politics was not involved but the incident is merely a family debacle.
However, the evidence tendered before the Committee clearly shows that after the children of the deceased stated that they had enlisted the assistance of the comrades from Kwaggafontein, and Selinah, the sister to July and Speelman, reported the move to the Pietskraal ANC leaders, the matter clearly became a community and political matter. Total control was then vested in the hands of the activists.
This incident occurred in a rural area where the community, particularly the Applicants subjectively believe in witchcraft. Initially no one was suspected after the death of the Mtsweni parents. However, after the deceased confronted the Mtsweni brothers and subsequently refused to go to the traditional healer and eventually admitted that she bewitched the parents by using muti obtained from Mahlangu, the Applicants firmly believed that she was practising witchcraft. The ANC took an interest because it was no longer a family matter. The deceased fell in the category of political opponents. During the killing, the family members of the deceased were not even present at the scene. Instead there were about 200 to 300 people who associated themselves with the killing.
Although Charles Skosana referred to a conflict between the IYP and Mbokodo and that the local civic organisation took a decision that the problem of witches in the area should be solved by evicting them, he conceded that the fact that the deceased was a supporter of Mbokodo played a relatively minor role. The incident was sparked off by the alleged bewitching of the Mtsweni parents.
The Committee must decide whether, in the present application, the five Applicants have complied with the requirements of the Act. There is no doubt that they complied with the formal requirements of the Act.
It is also clear that the act was not committed for personal gain, or out of personal malice, ill-will or spite as set out in section 20(3) of the Act.
There is no doubt that the Applicants are not withholding any information from the Committee. The Committee is satisfied that they have made a full disclosure of all relevant facts in compliance with the provisions of section 20(1)(c) of the Act. As pointed out above, although the incident started off as a dispute concerning the death of the Mtsweni parents, it eventually became a fully fledged political matter. The issue of witchcraft was but one factor that played a role in the eventual culmination of events leading to the death of the deceased. We are accordingly satisfied that the incident constitutes an act associated with a political objective as envisaged in the Act.
The five Applicants are accordingly GRANTED amnesty for the murder of Emmah Mtsweni at Pietskraal, Mpumalanga Province on the 1st January 1991.
It is recommended that the next-of-kin of Emmah Mtsweni be declared victims and are accordingly referred to the Reparations and Rehabilitation Committee for appropriate action.
DATED AT CAPE TOWN THIS DAY OF 2000.
JUDGE DENZIL POTGIETER
ADV N SANDI
MR J B SIBANYONI AC/2000/132
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.
PABALLO ERNEST PULUMO APPLICANT
(AM 6634/97)
DECISION
The applicant applies for amnesty in respect of the following offences:
1. The murder of Jacobus Petrus Ward, a seventy year old male, on 21 December 1992, on the farm Emmaus in the district of Theunissen.
2. The murder of Emmarentia Cornelia Ward, a thirty year old female, on 21 December 1992 on the same occasion.
3. The attempted murder of Anna Wilhelmina Ward, a sixty nine year old female on the same occasion.
Although the applicant was also found guilty of attempted robbery with aggravating circumstances he did not apply for amnesty in this regard.
The applicant was born in Lesotho and it was common cause at his trial that he was a Lesotho citizen at the time and working on the Free State gold mines. At the present hearing he professed to be a South African citizen, but could not produce any identity documents and later on confessed that he was not in possession of any. This might have been of importance in order to decide whether the envisaged amnesty would play a role in the reconciliation of our deeply divided society and whether the offences related to conflicts of our past. Normally, a foreign citizen like the applicant would not be considered as a member of one of the opposing groups in the South African conflict. In view of our conclusion on the other aspects of the application, the Committee did not find it necessary to arrive at a decision whether the applicant owed such an allegiance to the Republic of South Africa that would bring him within the ambit of a party involved in our conflicts of the past, striving for equal political rights for all South African citizens.
The applicant testified that he joined the PAC during 1990 in Virginia. There was no PAC branch in Virginia and the only PAC members he ever met were Sebande, who recruited him, Rasta Moloto to whom he was introduced by the said Sebande and one Lebohang Mey, who he met on one occasion before the incident. He, however, never attended any PAC meeting, could not even give the motto of the PAC and could only vaguely refer to the aims and objectives of the PAC.
According to him, Rasta Moloto told him that the two of them should join the PAC Task Force as a result of instructions received by Rasta from Mey. The two of them then formed a unit and decided to target the farm of the elderly Ward family in order to carry out the policy to "repossess". They went on 20 December 1992, to do recognisance. They decided that they would need the assistance of two more people. Rasta took the responsibility of getting two others to assist whilst the applicant accepted responsibility of organising transport from Virginia where they stayed to Theunissen where the attack was to take place. The next day Rasta brought two men, Johannes Leabe alias Bles and Potsotso and told him that they would assist them. He did not know these men and still does not know whether they had anything to do with the PAC or politics. He has organised one Seuntjie Tasi to take them to Theunissen in his taxi. They had to pay him R50,00. (It appears that Theunissen is between 30km and 40km from Virginia.)
When they approached the farm Rasta ordered the taxi to stop at the farm gate and to turn back. He ordered Leabe and Potsotso to remain at the gate. According to the applicant they would be called later to assist in carrying the loot. They intended to take whatever could be useful for the organisation.
On reaching the farm, he knocked on the door and Rasta and the farmer conversed in Afrikaans which he did not understand. Rasta was armed with a .22 pistol and he had a .38 revolver. Rasta forced his way past the farmer into the house and gun shots followed. The applicant shot the farmer and on entering the house saw Rasta being wounded and falling. He tried to drag him out of the house but saw a young woman approaching with a gun and he shot her. Another woman threatened him with a shoe and he also shot at her. Rasta thereupon managed to get on his feet and said they should leave. They left and soon saw cars approaching the farm. They did not go back to the gate and fled into the veld. Rasta fell down and was later found dead by the police. The applicant managed to escape.
The applicant further testified that Leabe and Potsotso refused to partake in the attack when they were told at the gate that the intention was to rob the farmer in order to "repossess".
The Committee is not satisfied that the offences are associated with a political objective and that the applicant and the deceased (Rasta Moloto) acted on behalf of or in support of a political organisation. All the evidence pointed to the contrary - the involvement of people whose political affiliation was unknown, the fact that applicant himself never attended any political meetings, bearing in mind that the incident took place in 1992, long after the unbanning of political parties. All the evidence pointed towards the probability that this was a criminal offence for personal gain.
Amnesty is therefore REFUSED in respect of the murders of Jacobus and Emmarentia Ward and the attempted murder of Anna Ward on 21 December 1992 at the Farm Emmaus in the district of Theunissen.
SIGNED AT CAPE TOWN ON THIS DAY OF 2000
JUDGE J MOTATA
ACTING JUDGE C DE JAGER
ADVOCATE N SANDI AC/2000/133
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.
TEMBA PHIKWANE 1ST APPLICANT
(AM 6032/97)
MANDLA MICHAEL YENDE 2ND APPLICANT
(AM 5648/97)
DECISION
Both applicants, members of PAC and its military wing APLA, apply for amnesty for the following offences:-
a) Attack on members of the SADF on the 16 December 1986 at the corner of John Brand Street and 16th Avenue, Alexandra Township, Johannesburg.
b) Attack on members of the SADF on the 1 January 1987 at the corner of John Brand Street and 1st Avenue, Alexandra Township, Johannesburg.
c) Attack on members of the SADF at the end January beginning February 1987 at the corner of Hofmeyer Street and 11th Avenue, Alexandra Township, Johannesburg, and
d) Unlawful possession of fire arms and ammunition.
The first applicant, Temba Phikwane, testified that he joined the PAC in 1976 and left the country in the same year to join APLA. He trained in various countries and returned to South Africa in 1986, and went to Alexandra Township and noticed SADF members children. He monitored their movements and thereafter received instructions from Sabelo Phama and sometimes from Letlapa Mphahlele to execute the mission of attacking. He would report back to the them Mozambique. He met the second applicant, Mandla Michael Yende, upon his return and trained him in fire arms and explosives.
In the first incident they attacked the SADF with scorpions. The second applicant was present. They later learned from newspapers report that 3 members of the SADF died.
In the second incident they were again three. Second applicant, David Myaka aka Sedudla (who has since died) and himself. They used the same weapons as above. Newspapers carried reports that six to seven members of the SADF were casualties in the attack. This attack was the only one executed at around midnight.
The third attack they were five namely:- Yende, second applicant, Elias Ranti Mothapo (Morapapa) David Myaka (Sedudla) Bengu and himself. The shooting was not returned. Many members of the SADF were affected and about five to 6 members died.
The second applicant, Mandla Michael Yende testified that he joined the PAC in 1986 through AZANYU and in the same year was recruited by the first applicant, who trained him, to APLA. He confirmed the First applicant's testimony of how the attacks were executed.
The Committee is satisfied that the applicants disclosed all material facts in regard to the offences and that the offences were associated with a political objective. They were members of APLA and they acted on instructions and in support of the organisation.
The Committee is of the opinion that Messrs Gary David Orwin and Adriaan Pierce should be considered to be victims in terms of the Act.
In the result amnesty is GRANTED to both applicants, Temba Phikwane and Mandla Michael Yende, for the above- mentioned offences.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000
JUDGE S MILLER
JUDGE N J MOTATA
ADVOCATE N SANDI AC/2000/134
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.
TSHEPO STANLEY BUHLALI 1ST APPLICANT
(AM 5308/97)
JOHN ITUMELENG DUBE 2ND APPLICANT
(AM 5310/97)
DECISION
The applicant, John Itumeleng Dube, withdrew his application as far as it relates to the three incidents in respect of which Tshepo Stanley Buhlali is asking for amnesty. These incidents are:-
1. The malicious damage caused to the Zola Municipality Offices in Soweto on 21 November 1987 and the illegal possession of explosives used in connection therewith;
2. The ambush and attempted murder of at the time to him, unknown policemen who turned out to be Fanie Stephen Mangoane, Moroka Edward Rametse and Phatsa Philemon Kekana as well as an adult male Raymond Kgwedi, and the illegal possession of an AK 47 and ammunition used in carrying out the attack at Moemise Street, Zone 2, Meadowlands on 29 January 1988;
3. The ambush and attempted murder of Municipal Police driving in Emdeni during April or May 1988 and the illegal possession of a firearm and ammunition used during the attack.
Seeing that the application of Mr Dube was withdrawn as far as it might have related to the above incidents the Committee will henceforth refer to Mr Buhlali (who was formerly known as Mshibe and who applied for amnesty under the latter name) as the applicant.
The applicant testified that he was a member of the Soweto Youth Congress affiliated to the UDF as well as a member of M.K. He was trained by Dube to whom we have referred to earlier and we will refer to him by name further on in this decision. During 1987 supporters of the liberation movements took part in a rent boycott. The municipality took steps to evict people not paying their rent. The supporters of the boycott became scared that they might loose their houses and Dube and the applicant decided that they should attack the Municipality Offices to demonstrate the ANC's solidarity with the protesters. Their intention was not to injure any people, so they decided to carry out the operation after closing hours when the employees have left the building.
They learnt that the offices were closing at 11h00 and planted four limpet mines who were due to explode round about 12h00. The bombs exploded round noon, causing severe damage to the property but nobody was injured or killed.
The second incident relates to an attack on the Meadowlands police. Dube ordered this attack after he and applicant had a discussion. It was decided to target the police station and to demonstrate in doing so that M.K. soldiers were prepared to attack the Security Forces in their own base. Dube, the applicant and one who acted as driver at the time carried out observations on a daily basis during the week preceding the attack. They observed that a number of police officers used to gather at the entrance to the police station during the early evening. On the evening of 29 January 1988 Dube and the applicant armed with AK 47 rifles was driven in a stolen BMW car to the Meadowlands Police Station. It should be mentioned that the driver has since died and did not apply for amnesty. Reference is, however, made to him in order to complete the picture.
On arrival to the Police Station they found that the Police were not gathering in front of the police station as expected. They drove around for a while and saw a police van driving out. They decided to follow this van and to launch an attack on the passengers when the opportunity arrives. The vehicle later stopped at a house which turned out to be the home of Raymond Kgwedi, at Moemise Street, Zone 2 Meadowlands. Dube gave instructions to fire and the applicant and Dube fired at the passengers who were at that stage getting out of the Police van. According to applicant they intended to kill them and it later transpired that they indeed wounded the three policemen mentioned as well as Raymond Kgwedi. The latter is still suffering at present as a result of the wounds.
The date of the third incident could not be pin pointed. The applicant testified that they gained information that the Police intended to carry out a raid in the Emdeni, Soweto area. The applicant and Dube decided to attack them. They took up position on a Street Corner and saw that six municipal police were patrolling the area. When one of the vehicles approached the corner they opened fire. Applicant saw that the vehicle's windscreen was shattered and that the vehicle came to a stand still after passing them. He and Dube immediately took flight. They were on foot and couldn't take the risk of being arrested. He read in the newspapers on the following day that six policemen had been hospitalised as a result of the attack.
It is regretted that no further information could be obtained about this incidents and the identity of the victims. It is 12 years since it happened and all documents seem to be destroyed or lost.
The Committee, after considering the evidence and documentation, is satisfied that the requirements of Act 34 of 1995 for amnesty have been met by applicant Buhlali.
The Committee is of the opinion that Messrs Fanie Stephen Mangoane, Moroka Edward Rametse and Phatsa Philemon Kekana and Raymond Kgwedi should be considered to be victims in terms of Act 34 of 1995.
The Committee further recommends that any person proved to be injured in the attack on the municipal police van in Emdeni during April/May 1988 should also be considered to be a victim in terms of Act 34 of 1995.
In the result amnesty is GRANTED to Tshepo Stanley Buhlali (formerly Mshibe) in respect of the following offences:-
1. The malicious damage caused to the Zola Municipality Offices in Soweto on 21 November 1987 and the illegal possession of explosives used in connection therewith.
2. The attempted murder of at the time to him, unknown policemen who turned out to be Fanie Stephen Mangoane, Moroka Edward Rametse and Phatsa Philemon Kekana as well as an adult male Raymond Kgwedi, and the illegal possession of an AK 47 and ammunition used in carrying out the attack at Moemise Street, Zone 2 Meadowlands on 29 January 1988.
3. The attempted murder of Municipal Police driving in Emdeni during April or May 1988 and the illegal possession of a firearm and ammunition used during the attack.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000
N J MOTATA (AJ)
C DE JAGER (AJ)
ADV F BOSMAN S.C. AC/2000/135
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.
JOHANNES ALBERTUS STEYN 1ST APPLICANT
(AM 4513/96)
LAURENCE GERALD WASSERMAN 2ND APPLICANT
(AM 4508/96)
MATHYS CORNELIUS BOTHA 3RD APPLICANT
(AM 7560/97)
DECISION
The applicants apply for amnesty for the killing of Tholinhlanhla Blessing Mabaso, Thabani Brian Memela, Luvuyo Angelius Percival Mgobozi and Mbongeni Henry Zondi ("the deceased") on 7 September 1986 at the Quarry Road off- ramp on the southbound N2 Highway, Durban.
It is common cause that all applicants were members of the South African Police's Special Branch at the time of the incident.
It is also common cause that Mamela was a trained member of MK. The applicants say that his companions were locally trained "terrorists".
The applicants testified they had received information that Mamela and his group were responsible for an attack on Winnington Sabelo's home in which his wife and children were injured. They had also received information that Mamela and his group were at a house in KwaMashu that was being kept under observation by two police officers.
The applicants testified that their information indicated that the four deceased were planning to attack the home of a black Counsellor. In order to avoid exposing their informant it was decided not to effect an arrest at the house and it was decided that Mamela and his group would be intercepted and arrested en route.
It was believed that the group was armed with AK47's, handgrenades and explosives and because of this the assistance of the Reaction Unit under Lt. Breytenbach was requested.
Accordingly, the Reaction Unit and other policemen, including the applicants, gathered at the KwaMashu police station during the course of the day. According to Breytenbach's affidavit in the late afternoon a radio message was received advising that the group armed as mentioned above was leaving the house in a blue Toyota Cressida. All the police members present hurriedly left in a variety of vehicles with a view to stopping the vehicle and apprehending the group.
After some time Botha and Steyn who were at that stage travelling south on the N2 spotted the vehicle. Steyn shouted over the radio that the vehicle had been spotted and gave their location. They were soon joined by another vehicle, a kombi driven by Nduli with Wasserman and Lembede. Close behind were at least two vehicles with members of the Reaction Unit.
According to the evidence of Botha he drove his vehicle in the left-hand lane of the road, with the Cressida in the centre lane.
Botha says he drove his vehicle alongside the Cressida and shouted and gesticulated to the occupants that they were police and that the vehicle should stop. He said the Cressida twice swerved towards him in an attempt to ram his vehicle off the road. At this stage the kombi had caught up and was alongside the Cressida on its right-hand side.
Botha, having fallen back, fired a number of shots with his service pistol at the rear left tyre of the Cressida. Wasserman and Lembede seeing and hearing gunshots believed the occupants of the Cressida were shooting at them and opened fire at the Cressida with their service pistols. When Steyn and Botha saw and heard the shots of Wasserman and Lembede they also thought the occupants of the Cressida were shooting. Someone shouted words to this effect over the radio.
The kombi overtook the Cressida and stopped in front causing the Cressida to collide with the rear of the kombi.
Wasserman and Lembede jumped out of the kombi and fired at the Cressida. Almost immediately the members of the Reaction Unit arrived on the scene and opened fire on the Cressida.
Once the firing had ceased Botha and Steyn went to the Cressida and found that the four occupants of the Cressida had died. They searched the vehicle and were surprised to find no weapons or explosives. Steyn and Botha then decided to send Wasserman to fetch the arms and explosives that were thought to be at the house in KwaMashu. They intended to plant the weapons in the Cressida so as to make it appear as if the deceased had been armed and that they had been killed in self-defence.
With this in mind Steyn and Botha cordoned off the area preventing the other policemen and the public from coming close to the Cressida. Wasserman returned with a bag containing AK47's and hand grenades that he gave to Botha who surreptitiously planted them in the Cressida.
As a result of investigations by the police an inquest was held. At the inquest Botha gave perjured evidence that the deceased were armed and that they were killed in self-defence. As a result of this and other false evidence the inquest found no one to be criminally responsible for the deaths of the deceased.
All the applicants maintained that they acted in the execution of their duties as members of the SAP and that their actions were directed against the perceived onslaught by the liberation movements. They believed that the four deceased were trained "terrorists" and as such had to be wiped out.
The relatives of the four deceased were present and represented at the hearing and one from each family testified. They were unaware of the details of the incident. The dependants of three of the deceased were unaware of their political involvement. They all opposed the application mainly on the ground that the applicants did not make a full disclosure.
Their legal representative argued, in the main, that such non-disclosure related to the question that the applicants' sole intention had from the outset been to eliminate the deceased and not to merely arrest them as they had maintained.
The committee has examined this submission. Although it is possible that the original intention of the applicants may have been to arrest the deceased, the probabilities indicate that at some stage, as the incident developed, they clearly made up their minds to eliminate the deceased.
On their own evidence they believed that Memela and his companions were trained "terrorists" armed with weapons and explosives, who had been responsible for the attack on Winnington Sabelo's family and who were en route to attack a black Counsellor. It is thus clear to us that the applicants believed they were dealing with dangerous people and consequently it is unlikely that they would have only intended to arrest the deceased without appreciating the probability of killing them. This is further borne out by the fact that is was seen as necessary for the Reaction Unit to be called in. While we are satisfied that the killing of the deceased was "an act associated with a political objective", the question which remains is: Whether the difference between the applicants' stated intention of merely wanting to arrest the deceased and their decision to kill the deceased precludes them from being granted amnesty?
When we look at the incident in its totality, we are of the view that once the applicants decided to apprehend the occupants of the Cressida, a chain of circumstances was set in motion which resulted in their deaths. Such conduct entailed the probability of the killing of the deceased, a result that all the applicants contemplated and associate themselves with.
In the result we find that it would be artificial to elevate this difference in intention to the level of a relevant non- disclosure.
Amnesty is accordingly GRANTED to the applicants for the following:
1. The killing of Tholinhlanhla Blessing Mabaso, Thabani Brian Memela, Luvuyo Angelius Percival Mgobozi and Mbongeni Henry Zondi ("the deceased") on 7 September 1986 at the Quarry Road off-ramp on the southbound N2 Highway, Durban;
2. The unlawful possession of the arms, ammunition and hand grenades which had belonged to the deceased;
3. Defeating and obstructing the ends of justice;
4. In respect of Mathys Cornelius Botha, perjury.
The relatives and dependants of the deceased are found to be victims and are accordingly referred to the Reparation and Rehabilitation Committee in terms of Section 22(1) of the Act.
SIGNED AT CAPE TOWN ON THIS DAY OF 2000.
JUDGE H MALL
ADV F BOSMAN
MR I LAX AC/2000/136
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.
S.B. DLADLA APPLICANT
(AM 3487/96)
DECISION
The applicant applied for amnesty in respect of:-
The murder of Mr Madisela during October 1993 at Wembezi, Escourt.
The applicant testified that he was a member of the IFP and was the youth leader in the Wembezi area. On the day of the incident he and other IFP members intended to travel by bus to Ulundi for an IFP gathering. During those days attacks on IFP members travelling in cars or busses to political meetings were not unusual because a situation akin to a war situation existed at the time between members of the IFP and ANC. The applicant's father was a prominent member of the IFP and it was known that the Dladla family was targeted by members of the opposing political party. The IFP members travelling in busses were alerted to the danger of possible attacks and were told to be on the look out and to defend themselves.
While the IFP members gathered around the bus and some of them were boarding, the applicant who was already seated in the bus, saw a car approaching. According to him the car's lights were switched off while it was approaching the bus. This was followed by gunshots and he and fellow IFP members immediately disembarked from the bus to counter attack. While the car was moving slowly and making a U-turn they rushed towards the car, dragged the driver from the car and started stabbing him with spears. They carried spears because it form part of the traditional weapons which they were taking to the IFP gathering at Ulundi. The applicant told the Committee that he was seated at the back of the bus and arrived at the scene of the stabbing when the deceased had already been dragged out the car and the initial stabbing had been done. He didn't recognise the deceased at the time. Had he done so he would have stopped or prevented the stabbing because he knew the deceased well and knew that he was not involved in politics. Only after his arrest and after learning the identity of the deceased he realised that the attack was a mistake because they believed the gunshot (or two gunshots) they heard emanated from the vehicle whilst it might have come from the rocks around the area where the bus was parked. As far as the applicant knows, no gun was found near or inside the car. He further testified that he was accidentally wounded by one of his co-perpetrators during the attack and had to leave for the bus where they could attend to the wound. He later received stitches to the wound at Ulundi.
According to evidence given at the trial of the applicant by Ms Nomatemba Khumalo she was given a lift by the deceased on the fatal day. The deceased dropped her near the scene and she saw somebody approaching the car while she was leaving. She didn't hear or see anything thereafter. Neither she nor any of the passengers in the bus who gave evidence at the trial, testified about gunshots having been heard and the presiding magistrate didn't mention any shooting in his summary of the evidence.
The Committee is, however, not in a position to make any finding in this regard as it didn't have the verbatim trial evidence before it and nobody else, but the applicant, testified at the present hearing.
The evidence of the applicant is not satisfactory even though there is no evidence to contradict his version. If the attack on the deceased was not related to suspected gunshots, there seems to be no possible reason for attacking the deceased. It seems, however, that the attackers mistakenly took it for granted that the shots came from the motor car approaching them and making a U-turn. On the evidence before us no other reason for the attack was advanced. The following facts are, however, not disputed:-
The deceased was not involved in politics at all. The applicant conceded this and went further and said he would have stopped or prohibited the attack had he known the identity of the deceased at the time of the attack. He, however, stood within an arm length from the deceased when he stabbed him in the chest. Although it was dusk, it is hard to believe that he wouldn't have recognised or attempted to recognise the victim before stabbing him. He testified that he knew all the leading personalities involved in the local politics because he as leader of the youth made it his business to know his opponents. That was the reason why he knew that Mr Khumalo, who gave evidence at the trial, was a member of the ANC. It is improbable that after the killing of the deceased nothing would have been reported about the gun from which shots were suspected to be fired.
The Committee is not satisfied that a full disclosure of all the relevant facts pertaining to this offence, the role played by the co-perpetrators and the reasons for the attack on an innocent non-political involved person were disclosed.
In the result the application for amnesty is REFUSED.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000
JUDGE H MALL
ACTING JUDGE C DE JAGER
ADVOCATE S SIGODI AC/2000/137
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.
NZIMENI DANSTER 1ST APPLICANT
(AM 0040/96)
MONWABISI ERIC KHUNDULU 2ND APPLICANT
(AM 0050/96)
LOLLIE KWAKWARI 3RD APPLICANT
(AM 4296/96)
DECISION
The applicants applied for amnesty in respect of the following offences:
1. Housebreaking with the intent to rob and murder, with aggravating circumstances on 6 February 1987;
2. The murder of Matheus Gideon Palvie a 63 year old male on 6 February 1987 on the farm Leeukloof in the district of Cradock;
3. The murder of Jeanette Johanna Palvie, a 54 year old female who died on 15 March 1987 as a result of injuries sustained during an assault on her on 6 February 1987 on the foresaid farm;
4. The robbery of the following goods:
One blessing wall clock;
One antique "Wilson goggies tin containing 26 keys";
One black suit;
One shirt;
One seven star alarm clock;
One 22 rifle serial no. 94980; One Polaroid camera;
One box containing ten camera flashes;
One key attached to a piece of wood;
One brown belt;
One screwdriver;
One doorknob;
Two bunches of keys;
One gold coloured flick man’s watch;
One blue shirt;
One silver coloured cigarette lighter;
One black case containing nine cassette tapes and eleven empty cassette tape containers;
One Rhoner sportwaffen GMGH med. 115 6.35mm pistol – serial no. 19271;
Eleven rounds of 6.35mm ammunition;
One Parker pen engraved Rustenberg Bottle Store;
A selection of tools;
Four tool boxes;
Two padlocks;
One grey belt;
One brown bag;
One pair of grey underpants;
One black ladies jersey;
Two pairs of grey trousers;
One grey jacket;
One grey short sleeved shirt;
One peach ladies jersey;
One pink sheet;
One brown man’s jersey;
One striped tie;
Two pink pillow slips; One beige suitcase;
One pair of brown trousers;
One pair of white underpants;
One pair of blue underpants;
One blue notebook;
Three pairs of pyjamas;
One washcloth;
One khaki shirt;
Four ritmeester senior cigars;
One Volkswagen Golf motor vehicle registration no. CAT12884.
5. The illegal possession of a firearm in contravention of Section 2 of Act 75 of 1969 on 6 and 7 February 1987 to wit a 6.35mm Pistol serial no. 192710;
6. The illegal possession of .22 rifle serial no. 94980 on the aforementioned dates;
7. The illegal possession of ammunition on the aforesaid dates;
8. The malicious damage of the property of MG Palvie namely a VW Golf motor vehicle registration no. CAT12884 on 6 February 1987 at Cradock.
At the time of the offences the first applicant was 33 years old, the second applicant, Mr Khundulu, was 28 years of age, Kwakwari was 14 years of age and a further accused Ngolose, was acquitted, was 15 years of age. At the hearing it transpired that the next of kin of the deceased were not notified of the hearing because they couldn’t be traced by the investigating officers. The Committee proceeded to hear evidence but ruled that further attempts should be made to trace them. They were indeed traced after the owner of the farm where the deceased lived, supplied the Committee with the necessary information. The Committee then furnished them with copy of the transcribed evidence. It then transpired that the son of the deceased who lived at Cradock at the time of the murder of his parents recently died and the daughter of the deceased furnished the Committee with an affidavit to which we will refer. The Committee has been informed that a copy of the affidavit was forwarded to the applicant’s legal representative for comment if he would desire so to do.
At the start of the hearing the third applicant informed the Committee that he is withdrawing his application. The Committee fully explained the consequences of such a withdrawal to him, but he persisted in his request. His application was then ruled to be withdrawn and removed from the role. It should be mentioned that at the time of the hearing he had already received parole. He originally was sentenced to 10 years imprisonment, his youth being considered as a mitigating factor. The two other applicants were serving life imprisonment sentences after the death penalties imposed were altered to life imprisonment. Their sentences on the other charges were to run concurrently with the sentence of 20 years imprisonment imposed on the first charge.
The first applicant, Danster, testified under oath and also confirmed the contents of an affidavit sworn to by him and handed in as Exhibit "A". A similar affidavit by the second applicant, Khundulu, was handed in as Exhibit "B". On behalf of both applicant’s letters written by the Cradock Advice Officer were handed in stated inter alia:-
"The motivation is that he responded to a call by the then banned ANC (African National Congress) that the Youth should make our Townships a no go area for Police and informers. Although they exceeded the bound of the call we strongly feel it was because of their political immaturity that they adopted extreme measures.
Further the militant mood of the times, added to their actions but it does not detract from the fact that their actions were politically motivated."
The letters written were identical and dated 20 February 1996 and signed by Messrs. Ntombela and Ngale who indicated that they were respectively the chairperson and treasurer of Cradoya who was then affiliated to the UDF.
Danster stated in his application that he acted with political motivation because of the oppression by the apartheid regime resulting in the killing of some of their leaders. The youth in Cradock then decided to organise themselves and to attack farmers in order to get firearms and ammunition. He further stated on a request to state whether he acted under orders or on behalf of or with the approval of an organisation:
"We committed the offences voluntarily through the decisions of the youth which was decided at the absence of our leaders who were killed and some were detained."
He further stated that no order or approval was applicable and a similar answer given to the question whether he benefited financially or otherwise.
The second applicant in his application stated that the deceased were deeply involved with the SADF and SAP in acting against the community. He further stated that they, like others, kept arms and ammunition that were used indiscriminately against them. They wanted to get hold of the arms in order to defend themselves. His objective was to disarm them and to reinforce their defence unit. He didn’t benefit financially or otherwise and wasn’t ordered to do what he did.
The applicants at the hearing filed exhibits "A" and "B" the contents of which is for the greater part verbatim the same.
In his affidavit, Danster, stated that he didn’t go to the farm out of his own free will but because he received specific instructions from his commander Ben Xolile Sithungu who informed him of a cache of arms at Leeukloof Farm. He was instructed to go to the said farm to disarm the farmer. He further testified that they all knew that farmers had caches of weapons on their farms. The second applicant, Khundulu, also, contrary to what he stated in his application, alleged in his affidavit, exhibit "B" that they went to the farm "upon specific instructions issued by my leader Cde Xolile Ben Sithungu that we should go to the said farm and search for weapons." He further stated:-
"A decision to disarm the said farmer had been taken at a youth meeting (Cradoya) and a SDU meeting." This was not confirmed in exhibits "A" and "B". If any instructions were issued by the said organisation it is clear that they exceeded the bounds of the call made by the ANC. The ANC on various occasions stated that criminal activities like fraud and robbery was never their policy. The Committee was not satisfied that they indeed acted under instructions of their organisation. No member of the organisation came forward to testify to that effect and the only "evidence" produced by the applicants in support of their contention, namely Exhibits "C" and "D", stated that they exceeded the bounds of the call made by the ANC.
It is necessary to deal with the evidence of the applicants as to what exactly happened on 5 and 6 February 1987. In paragraph 3 of their affidavits, "A" and "B", they allege that Xolile Sithungu instructed them to go to the particular farmer who was a police reservist. It later became clear that the owner of the farm was Mr Boy Jordaan. He had moved to Cradock and the two deceased were allowed to live in the farm house who stood empty for a while. Mr Palvie was according to the evidence given at the trial a railway pensioner. This was confirmed by his daughter, Mrs vd Merwe, who also stated that he had a loss of hearing since childhood. As a result thereof he never served and could not serve as a member of the commando or police reservist. His hearing ability deteriorated as he grew older.
The applicants testified that they obtained a lift from one Mpungutye Ralane who went to one of the neighbouring farms. The two applicants were accompanied by Lollie Kwakwari and Lolose Ngolose who lived on the farm with his parents and knew the area well. They arrived on the farm at about 19h30 and went to the house. While they were standing on the verandah planning how to gain entrance, a dog started barking. Ngolose became scared and they retired to his father’s home where they slept.
Ngolose’s father who was ignorant of the purpose of the visit, inadvertently supplied further information that the farmer would visit the farm during the morning to take stock and would then leave. The deceased, to whom Danster referred as the supervisor and Khundulu as a foreman, would also leave during the day of Cradock but will return later that afternoon.
This indeed happened the next day. Jordaan came and left. The Palvies later left for Cradock. While they were away Khundulu and Lollie Kwakwari gained entrance into the house by breaking a window whilst Danster kept guard.
In a statement by Khundulu, received by the Amnesty Committee on 5 June 1997, Khundulu then stated:-
"The farmers returned unexpectedly. They took everyone by surprise. Lollie and I had to use violence to get out of the situation, and also obtain the guns. We used a hammer and one of the big knives when hitting the farmer and his wife thus killing them."
The guns and the farmer’s motor vehicle were taken. Lollie took some clothes as his were blood stained. The motor vehicle was later burnt.
This is quite a different story from the one reflected in exhibit "B", and his evidence before the Committee. He told the Committee that after entering the house through the window which he broke they searched the house for weapons. They found a rifle in one bedroom but no bullets. They saw boxes and broke the padlocks with an axe. There were plates wrapped in newspapers in the boxes and in one of the boxes was a small safe and on opening it he found it contained buttons or police badges. He took this box with the badges to show it to Danster "because it was clear that the farmer was also a policeman because those badges were South African badges. We continued the search. We took two or three hours searching the house but we did not get any weapons or firearms."
Lollie thereupon in the presence of Khundulu packed the goods referred to in the indictment in two suit cases. They then left the house and went back to the house where they have slept the previous night. They enquired from one Dumezweni (a brother of Lololo who directed them to the farm) who they took into their confidence, where they could find the weapons which were supposed to be on the farm. He informed them that the owner of the farm took the weapons with him when he left the farm to stay in town and that the only firearms left were the rifle and two small guns which were presumably taken by the deceased when they left for town. They then decided to wait for the deceased to return in order to get the weapons.
According to Khundulu’s statement, Exhibit "B" "at about 14h00 the farmer’s vehicle was seen from afar." They then ran to the house where Lollie and Danster entered the house while he remained outside as a guard." We are not going to deal with all the contradictions in his evidence and the two statements filed. From the above quotations it is clear that they were not surprised by the unexpected arrival of the deceased. The contrary happened. They were not surprised by the unexpected arrival of the deceased – they surprised and killed the deceased. Khundulu further stated:-
"When I entered the house there was silence. I tried to establish the situation and I heard a slight noise coming from the room next to the kitchen. I went there to check what was going on, Lollie was hitting the farmer’s wife with a hammer. I did not say anything. I returned to the kitchen. I saw the bag on the table. I opened it and found a small firearm and car keys."
They drove off in the car taking two packed suitcases with clothing, the rifle and a wall clock. They testified that they couldn’t find Xolile that evening to hand the weapons to him. The next morning they looked for him again without success at his home. They only found his brother-in-law and sister at home. Lollie sold a suite and the wall clock to them. They were arrested while walking in the street later the same morning.
He further testified that it was instructions that they shouldn’t take anything but firearms "but if it does happen that you take anything more than firearms or other than firearms, we should not fight over whatever that is, we should take everything that we’d got from the farm, firearm or not, to the commander." His explanation for taking two suit cases of clothing, the selling of a suite and a clock and why he did not keep the police buttons to hand it over to his commander as he was obliged to do with everything they took, is to say the least, unconvincing.
During cross examination Khundulu added that the instructions to disarm farmers went further and authorised them to kill a farmer should he resist to hand over the weapons. There was no evidence that Mr Palvie or Mrs Palvie was asked to hand over any weapon or that they had any weapon on their bodies when they were attacked. The only pistol found was found in Mrs Palvie’s hand bag which she left in the kitchen when she proceeded to the bedroom where she was attacked first by Danster knocking her down and in his own words "left her harmless --- she was not carrying anything in her hands as well. She didn’t look armed."
It is not clear whether the farmer, Boy Jordaan, who was then staying in town, was a member of the commando or a police reservist. The applicants conceded that they had no information that Mr Palvie, the deceased was in any way connected with the Security Forces contrary to second applicant’s allegation in his application that he knew that the deceased were deeply involved with the SADF and SAP. On being confronted with this, Khundulu replied that they considered all farmers to be enemies because it was known that some of them ill-treated their workers. There was no evidence that this applied to the Palvies. The only evidence was that Mrs Palvie bought groceries for Mrs Evelyn Matiwane. The latter saw three people driving away from the farm in the Palvie’s Golf when she was on her way to collect the groceries. She discovered the murders and through her the police was alerted.
The Committee had to decide whether the murders and relevant other offences were associated with a political objective, or whether they were ordinary criminal offences like numerous other robberies which prevailed then and are still prevailing today. Not one of the applicants had a history associated with politics. Mr Khundulu had three previous convictions for theft, two previous convictions for housebreaking with intent to steal and theft and two previous convictions for assault with intent to commit grievous bodily harm. He was in fact released from prison only nine months before he committed the crimes relevant to this application. Danster was released approximately at the same time after serving a 12 year sentence for robbery with aggravating circumstances. It is also hard to believe that items such as one pair of grey underpants, one pink sheet, one blue notebook, one washcloth, four ritmeester cigars and the majority of items stolen, would have been taken to be sold to get money for the benefit of the political movement to which they belonged. The items robbed are rather indicative of the fact that the deceased people did not possess any valuable articles and were pensioners living by grace of the farm owner on his property. There is not a shred of evidence that they were political involved. Even if one would accept that the applicants mistakenly believed that Mr Palvie was involved as a police reservist and was targeted because of that, it still remains a mystery why Mrs Palvie was hammered to death, even after she was rendered harmless by Danster.
On the other side of the scale it seems clear that they went to the farm to obtain weapons. They gained information that the farmer, presumably Boy Jordaan, had a cache of weapons on the farm. After their arrival on the farm they found that he had moved to a townhouse and took the weapons with him. They were informed that the other white man they saw on the farm "had a rifle which he used in shooting baboons and some birds." This was presumably the .22 rifle which they found in the house without bullets. They were also informed that he had a pistol which he carried with him. This seems to be the pistol found in the hand bag. There was talk of another pistol and some contradictory statements were made about a pistol found in the possession of Mr Palvie. This seems to be incorrect – only one pistol was found in their possession and if another was taken they failed to disclose what happened to that one.
They testified that their motive was to find weapons to enable Cradoya to make the area where they lived a no go area for the police. This is to a certain extent corroborated by the letters referred to above written by the Cradock Advice Office where it is stated that they were motivated by a call by the ANC but that they exceeded the bound of the call. Apart from this they testified that they were prepared to attack Mr Palvie because farmers were involved in patrolling the township where they lived. The police buttons referred to at the hearing were not mentioned in their applications, neither did Danster or Kwakwari mention it in their supporting affidavits. Khundulu mentioned it for the first time in his affidavit handed in at the hearing. It still remains a mystery why he threw what he considered to be proof of Palvie’s involvement with the police away and didn’t keep it to be handed to his commander as he was obliged to do with everything taken. Even if they decided at the scene to take some items for personal gain the fact remains that they went to the farm with the motive of getting weapons to be used against the police in the political struggle and not with the motive to kill people not resisting their attempt. The questions still to be answered are whether the other criteria mentioned in Section 20 (3) of Act 34 of 1995 have been met in the light of the fact that they are not only applying for amnesty in respect of the robbery of the weapons but also for two murders.
The context in which the offences were committed has to be considered. It is common cause that there was political conflict in the Cradock area. The motive to obtain weapons was related to this, but the murders in itself didn’t form part of a political uprising or even a reaction thereto. The objective of the act was directed against farmers supporting the police. The applicants might have been mistakenly under the impression that Mr Palvie fell in that category but there is no evidence or facts on which such a belief concerning Mrs Palvie could have been based on. The attack on her was an attack on a private individual and the goods and car stolen was private property.
The act of disarming farmers might have been approved of by the Cradock Advice Office but they clearly disapproved of the fact that the applicants exceeded the bounds of the call to make the township a no go area.
The killing of a farmer and his wife living 25km from the township seems also to be disproportionate to the objective of making the township ungovernable. On the applicants’ own version there was no reason to kill Mrs Palvie and no reason for a second attack on her after she was left harmless and was not in possession of any weapon.
In the result the Committee finds:-
1. That the offence to rob weapons from the deceased was associated with a political objective. That the robbery of the other items were for personal gain. The act, however, doesn’t provide for amnesty on a portion of a charge where all the items were grouped together under one charge and the sentence relates to all the items. The intention of Parliament in enacting The Promotion of National Unity and Reconciliation Act clearly was to grant amnesty to people involved in the political struggle and committed to what they regarded to be noble political ideals. Amnesty should be excluded to those trying to enrich themselves or tainting their noble motives with personal gain or malice. It also seems illogical that a person charged with robbery of a pistol worth R500.00 for political purposes but at the same time stealing goods to the value of say R30 000.00 or R100 000.00 for personal gain should be granted amnesty simply because all the stolen goods were listed in one charge. (It might even have been a splitting of charges if an attempt was made to separate it). It seems that Parliament dealt with this problem by inserting at the end of section 20 (3) of Act 34 of 1994 an exclusionary clause reading as follows:
"but does not include any act, omission or offence committed by any person referred to in subsection (2) who acted:-
(i) for personal gain------".
This clause overrides all the previous criteria and qualifications. An applicant might seem to qualify for amnesty but as soon as this clause becomes applicable – it can be referred to as the "but" – clause – he becomes disqualified and cannot be granted amnesty in respect of that offence.
They might have had a political objective in the beginning to obtain weapons but they themselves changed that objective the moment they started grabbing articles like cigars for personal gain and pleasure. Then the "but" – clause came into operation and they disqualified themselves to be applicants for amnesty in that respect.
As stated applicant Kwakwari withdrew his application. As far as Danster and Khundulu are concerned:
Amnesty is therefore REFUSED on counts 1 and 4.
2. That the applicants believed, albeit mistakenly, that Mr Palvie, was an opponent in the political struggle and he, in the process of obtaining weapons from him, was attacked, resisted their efforts and was killed. Amnesty is GRANTED to them in respect of the murder of Mr Palvie.
3. That the murder of Mrs Palvie was disproportionate to the objective of stealing the weapons. That no evidence exists that she was a political opponent in any way involved in the struggle, that she was already rendered harmless, when she was killed and that she was killed out of malice. Amnesty is REFUSED in respect of the murder of Mrs Palvie.
Amnesty is GRANTED in respect of counts 5 to 8.
It is recommended that the dependants of the deceased be declared as victims in terms of the Act.
SIGNED AT CAPE TOWN ON THIS THE ______DAY OF ______2000.
______
JUDGE A. WILSON
______
ACTING JUDGE D. POTGIETER
______
ACTING JUDGE C. DE JAGER AC/2000/138
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.
ZWELI ABSOLOM MHLONGO 1ST APPLICANT
(AM 5272/97)
ASHLEY MURPHY MASILO 2ND APPLICANT
(AM 0687/96)
DECISION
The applicants apply for amnesty for offences arising from the kidnapping and the killing of one Hendrik Jacobus Pyper at or near Mangkweng in the Northern Province on or about 6 February 1994 as well as for offences relating to the killing of Wessel Phillipus Johannes Bouwer and Cornelia Hendrina Bouwer and the attempted murder of their son, Jacobus Marais Bouwer, at or near Roedtan on or about 11 February 1994. The first-mentioned incident also involved the robbery of certain items and a car belonging to the deceased whilst in the second incident, although no items were taken, a robbery of money from the cafe where the incident took place was intended. In both incidents the applicants unlawfully carried arms and ammunition. The relatives of the deceased in the first incident, in a letter to the Amnesty Committee, expressed the view that there was no political objective in the commission of the various offences. They did not, however, wish to oppose the applications formally and left it in the hands of the Committee. The surviving victim in the second incident opposed the granting of amnesty to the applicants on the ground that there was no political objective in the commission of the offences applied for.
Both applicants testified before the Committee. Colonel Xolisa Clifford Poni a former senior official of APLA also testified on their behalf. His evidence did not however specifically relate to the merits of the applications and was of a more general nature. One of the two persons implicated by the applicants, their leader, Moses, had died in a shoot out with the police at the time of their subsequent arrest and the other one, Silo, escaped subsequent to his arrest and was not re-arrested. No evidence was presented on behalf of either the relatives of the deceased or the surviving victim.
The first applicant, Zweli Absolom Mhlongo, testified that he went into exile in 1987 and joined APLA, the armed wing of the PAC. He was trained in Uganda and Tanzania and returned to South Africa in 1993. He went to live in Alexandra Township in Johannesburg where he met up with one Moses, also known as Moss, his former commander. The first and second applicants, one Silo, also known as Lebohang and Moses went to Moses’ house in the Northern Province in the second applicant’s car. Moses told them that they should go and look for targets and that they should capture the whole of the Northern Province. They were not in a hurry and would capture the area "little by little" although it was now only two months before the first democratic election and after the date on which the PAC had suspended the armed struggle. The applicants knew about this but said they did not agree with their leaders.
Their first target was Pypers whom they ambushed near the Ebenhaezer dam. They abducted him, promised not to shoot him if he handed them his bank card and gave them his pin number. Moses allegedly asked him what organisation he belonged to. He responded that he was AWB. They shot him in the head took his shoes and his car and then proceeded to draw money from his banking account, a mere amount of R130,00. They returned to Johannesburg, sold the car for R7 000,00 of which they took R700,00 to enable them to return to Pietersburg. The Committee noted that in his written Application the first applicant stated that they "wanted a car which was to be used for other operations of the organisation."
It appeared from responses in cross-examination and from the written statement of the first applicant that on their way back to Pietersburg they went to the Lebowakgomo complex with the intention of robbing a bank but did not deem it safe in view of their small number and they decided to go back to enlarge their ranks. On the way back they took another route via Roedtan where they noticed a cafe which was still open. Moses sent the second applicant, Ashley, in to buy something and to "check-out" the place. Ashley reported that the situation was conducive for an attack. Moses shot and killed the owner and his wife and the first applicant wounded the young boy who wrestled with Moses. The evidence was that it was their intention to rob the cafe in order to obtain money for petrol.
Their car broke down and they were arrested the following day while they were still planning to hijack another vehicle. This is where Moses was shot and killed by the police and the other three were arrested. During the court proceedings Silo and the first applicant managed to escape but the first applicant was re-arrested, tried and convicted and is still serving the remaining term of his sentence of 32 years of imprisonment.
The second applicant to a large extent confirmed the evidence of the first. He was however not a trained APLA cadre but said that he regarded himself as a member who had joined internally. This is neither here nor there. The Committee accepts that he was at least a supporter of the PAC and APLA.
After having carefully considered all the evidence, the Committee came to the conclusion that although the applicants were political activists, the offences which they had committed and in respect of which they are applying for amnesty were not committed with a political objective as required by section 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995. The Committee bases its conclusion on the following:
1. There are numerous contradictions in the evidence presented at the hearing and other statements made by the applicants in support of their applications for example the reason why they took the deceased’s (Pypers’) car.
2. Some aspects of the evidence such as that Pypers while under threat would have told them that he is AWB the Committee regards as highly unlikely and reflect badly on the credibility of the applicants who in the opinion of the Committee tried to tailor the evidence to reflect a political objective.
3. Throughout their activities in the Northern Province the modus operandi of the applicants pointed at robbery as the primary objective and their targets such as the intended robbery of the bank in Lebowakgomo were not compatible with their stated objective of waging a campaign against the "Boers" in order to gain control of the Northern Province.
4. The Committee rejects as almost ludicrous the evidence that the applicants, being a small band of four men, intended to take over a large area such as the Northern Province and this within a period of two months before the first democratic elections.
5. The Committee does not accept the evidence of the applicants, who knew that their organisation had suspended the armed struggle, that they committed the offences in the course of a continuation of the struggle because they did not agree with their leaders.
The Committee finds that the actions of the applicants were for personal gain and accordingly the applications of both applicants are REFUSED.
SIGNED AT CAPE TOWN ON THIS THE ______DAY OF ______2000.
______
JUDGE S MILLER
______
ADV. F.J. BOSMAN
______
MR J.B. SIBANYONI AC/2000/139
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.
CYRIL CHISOMA 1ST APPLICANT
(AM 7065/97)
LUCKY RICHARD MOLAHLELI 2ND APPLICANT
(AM 7098/97)
EMBROSE MAY 3RD APPLICANT
(AM 7208/97)
KIFUWE MICHAEL NHLAPO 4TH APPLICANT
(AM 7303/97)
JABU JACOB NYETHE 5TH APPLICANT
(AM 7285/97)
MOGOERA VALENTOR MODIKOA 6TH APPLICANT
(AM 7212/97)
THANDUXOLO PATRICK MQIBI 7TH APPLICANT
(AM 7375/97)
THEMBA RICHARD XABA 8TH APPLICANT
(AM 7306/97)
PERRY NHLANHLA DLAMINI 9TH APPLICANT
(AM 7239/97)
SANDILE JEREMY NGUBENI 10TH APPLICANT
(AM 7298/97) CHICHELA ESAU MACHITJE 11TH APPLICANT
(AM 7634/97)
MESHACK TSEKO THULE 12TH APPLICANT
(AM 7714/97)
MOLEFE MICHAEL SELEPE 13TH APPLICANT
(AM 7154/97)
DECISION
Each of the applicants make application for amnesty in respect of various offences and in terms of Act 34 of 1995 as amended (the Act).
It is common cause that they were all members of the self-defence units (SDU’s) established in Thokoza, Gauteng by the African National Congress (ANC).
At the onset of the hearing, we were confronted with over 50 applicants but on closer scrutiny, more than half thereof did not seem to demand attention at this hearing. Eventually we were able to deal with the applications of the abovenamed applicants.
There are a number of incidents upon which the various applications are based.
Mr. Ronnie Kasrils testified about the political activities, both lawful and unlawful that were directed at the ANC in various areas of the country. These activities included attacks on members of the ANC resulting in death, injury and damage to property as well as an infringement of rights like those related to territory. (Cross border attacks and areas within the different suburbs).
Mr. Kasrils was a member of the ANC hierarchy charged with investigating and dealing with the political violence affecting the ANC at the time. He was involved in the strategic decisions made in pursuance thereof.
In the discussing the matter, the ANC decided that it would be necessary to establish SDU’s with a clear general mandate to defend the interests of its membership as well as those regarded as neutral. Despite a set of written general rules which amounted to some type of code of conduct, actual activities of the SDU’s were not explicitly defined. However, each SDU had it’s own independent decision makers. Their decisions were limited to fall within the ambit of the general purpose for which SDU’s were established.
The SDU’s were established within the background of this ongoing battle with at least a loose hierarchy of command to control it. It seems that these SDU’s were required at some stage during these skirmishes to adopt strategic activities which amounted to criminal offences and went far beyond the acceptable norms of self-defence but still committed within the political framework of the time and circumstances of the area.
Clearly the members of the relevant SDU hierarchy identified the Inkatha Freedom Party (IFP) and it’s members as being the offenders and attackers of the ANC’s membership. Furthermore this view was fortified by a developing pattern, as such attacks occurred after marches to funerals of members of the battles between the two organisations developed to such an extent that mere organisational association led to these attacks on residents of the area.
With the increased frequency of these attacks, the decision makers of the SDU’s decided that preventative steps rather than reactive steps should also be employed in order to defend the ANC membership of the area. They resorted, at times, to unlawful activities which give rise to these applications. We deal with each incident in turn.
1. CHISOMA AM 7065/97
The applicant applies for amnesty in respect of the kidnapping and murder of one Mr. Zulu (the deceased) in 1994. In addition he applies for amnesty in respect of the unlawful possession of an AK47 firearm and the associated ammunition. He was with two others who are not co-applicants in this application.
Mr. Zulu was believed to be a member of the IFP. The applicant assisted in kidnapping Mr. Zulu from his home and taken to the house of one Mbatha apparently a leading member of the relevant SDU. There the deceased was shot dead. The applicant was also armed and associated himself with the murder though he did not directly cause the death of the deceased.
He possessed the firearm and ammunition as a result of being a member of the SDU and issued to him in his capacity as such.
Mrs. Sifatsane, the customary wife of the deceased, testified in opposing the application, that the deceased was, as far as she knew, a member of the ANC and not the IFP.
However, she could not specifically deny any of his activities as alleged by the applicant. Nor could she counter the bona fide belief that the deceased was in fact a member of the IFP.
We are satisfied that the applicant has indeed made full disclosure and acted with a political motive and consequently he has complied with the requirements of the Act.
In the result, amnesty in respect of the kidnapping and subsequent murder of Mr. Zulu and in respect of unlawful possession of an AK47 firearm and associated ammunition is GRANTED to the applicant.
Joyce Sokhela (now Mbatha), the deceased’s wife and Gugu Patience Zulu (daughter) of 612 Lenon Street, Extension 2, Thokoza, 1426, are declared victims as envisaged by the Act and referred to the Reparation and Rehabilitation Committee for attention.
2. LUCKY RICHARD MOLAHLELI AM 7098/97
The applicant, a member of the SDU in Thokoza, makes application for amnesty in respect for attempted murder, unlawful possession of an MK47 firearm and R4 rifle.
Towards the end of 1992, at Schoeman Street, near Unit F and Buya Futi hostel, the applicant and others saw members of the IFP proceeding in the direction of Unit F where the applicants and his associates were amidst their homes. Armed with AK47 firearms, the applicant and his colleagues shot at the crowd of IFP marchers in anticipation of an expected attack on their persons, homes and community as was becoming customary at the time.
A gun fight between the two groups ensued until the applicant and his group ran away. Clearly the event occurred within the political backdrop of the time in the area. There seems to be no other reason for the confrontation and the committee accepts that full disclosure has been made in respect of the event in question.
In the circumstances the committee is satisfied that the requirements of the act have been complied with and amnesty is GRANTED to the applicant in respect of an undetermined number of attempted murders committed at Schoeman Street, Thokoza and the unlawful possession of a R4 rifle and an AK47 firearm together with the associated ammunition, towards the end of 1992.
3. EMBROSE MAY AM 7208/97
The applicant makes application for amnesty in respect of attempted murder, and the unlawful possession of an AK47 firearm and ammunition. About a week or two before the general elections in April 1994, the applicant was found in the unlawful possession of an AK47 firearm and ammunition at his home. He was part of the SDU in the area and was issued with the firearm and ammunition to complete his duties as a member of the SDU.
During the same period, the applicant shot a person whose name he does not know. It seems that this person harassed him and threatened to expose him to the soldiers and police who were at the time seen to be upholding the machinery of apartheid and its interests. He testified that this person was an enemy of the people because in informing the soldiers and police, he betrayed the political cause. He does not know if he injured or killed that person.
The committee is satisfied that the applicant has complied with the requirements of the Act in that this actions in committing these offences were politically motivated and that he made full disclosure of the events relevant to his application.
In the result, amnesty in respect of the unlawful possession of an AK47 firearm and attempted murder of an unidentified person both committed in April 1994, is GRANTED to the applicant.
Applicants:
4. KUFUWE MICHAEL NHLAPO AM 7303/97
5. JABU JOYCE NYETHE AM 7285/97
6. MOGOERA VALENTOR MODIKOA AM 7212/97
7. THANDUXOLO PATRICK MQIBI AM 7375/97 are applying for amnesty in respect of related offences.
The first incident relates to the attempted murder of Sibongelo Sambo and the burning of her house. Applicants number 5, Nyethe, number 6, Modikoa and number 7, Mqibi were involved in this incident.
According to the evidence, Mqibi, who was the overall commander of the SDU in the area instructed Nyethe and Modikoa to burn Sambo and her house because she was an IFP leader in the area. This order was given in 1993 and the two of them and Mdamase and M’Africa proceeded to Sambo’s house and petrol bombed it with the intention of murdering her. They suspected her to be in the house. The house was destroyed but Sambo was not killed in the process. As far as the Committee could ascertain Mdamase and M’Africa did not apply for amnesty.
The second incident relates to the kidnapping of Sambo and her sibling and her subsequent murder. About a month after the first incident Nyethe and one Vuyisile were ordered by Mashinini who was a sub-commander in the region to kidnap Sambo and to bring her to his home. Nyethe testified that in view of the previous order by Mqibi that she should be killed, he had no problems in obeying the order given by Mashinini. He went with Modikoa and Vuyisile and they kidnapped Sambo and her sibling and they brought them to Mashinini. Modikoa left after they handed Sambo over to Mashinini and was not present in what happened thereafter.
Nyethe also left but returned soon afterwards to fetch Sambo as he knew that she was to be taken to Danza Zone where she was to be killed. On his return he found that his colleagues were raping Sambo. He stopped them and shot her. According to him, he killed her in pursuance of the orders of Mqibi and Mashinini that she should be killed. As far as the Committee is aware, Vuyisile and Mashinini did not apply for amnesty. Mqibi himself was not present at this killing but admits that he gave the order that she should be killed. Nhlapo associated himself with the kidnapping and murder of Sambo although he did not do the actual shooting and also applies for amnesty for this murder.
The third incident relates to the burning of the house of Mr Mazibuko. This was done on instruction of Mqibi but he was not able to give the names of the cadres who carried out the operation.
The Committee is satisfied that the above offences, excluding the rape of Sibongile Sambo were offences associated with a political objective to fight the IFP, the political opponent of the applicants, that they were committed as a result of instructions falling within the political perimeters prevailing at the time and that the applicants disclosed the relevant facts.
Amnesty is accordingly GRANTED as follows:
1. to applicant no. 4, KIFUWE MICHAEL NHLAPO for:
(a) kidnapping of Sibongile Sambo and her sibling during 1993.
(b) murdering Sibongile Sambo during 1993 near Danza Zone, Thokoza.
2. to applicant no. 5, JABU JACOB NYETHE for:
(c) attempted murder of Sibongile Sambo during 1993.
(d) arson in respect of the house of Sibongile during 1993.
(e) kidnapping of Sibongile Sambo during 1993 (about one month after the arson referred to above).
(f) murdering Sibongile Sambo during 1993 at Danza Zone on the date when she was kidnapped.
(g) being in illegal possession of a firearm and ammunition on the date of the murder of Sibongile Sambo
3. to the 6th applicant, MOGOERA VALENTON MODIKOA for:
(a) attempted murder of Sibongile Sambo during 1993.
(b) arson in respect of the house of Sibongile during 1993.
(c) kidnapping of Sibongile Sambo during 1993 (about a month after the arson referred to above).
4. to the 7th applicant, THANDUXOLO PATRICK MQIBI for:
(a) attempted murder of Sibongile Sambo during 1993.
(b) arson in respect of the house of Sibongile during 1993.
(c) Murdering Sibongile Sambo during 1993 at the Danza Zone on the date when she was kidnapped.
(d) arson of the house of Mr Mazibuko during 1993/1994.
Doris Sambo and Mazibuko are declared victims as defined by the Act and in terms of section 22 of Act 34 referred to the Reparations and Rehabilitation Committee for attention.
8. THEMBA RICHARD XABA AM 7309/97
9. PERRY NHLANHLA DLAMINI AM 7239/97
The applicants apply for amnesty in respect of the offences of attempted murder of Mr Msizi and arson on his home. During 1990, Dlamini went to the home of Mr Msizi. He was in the company of Themba Xaba, Jackie Macheo and Bafana Baloi. Both the applicants were members of the area SDU. Themba Xaba was a commander of the group and gave instructions with regards to the commission of these offences. He gave these instructions on his own volition. Mr Msizi was a member of the IFP and also councillor in terms of the Local Affairs Legislation. He was regarded by the applicants as causing hardship for the local community such as evicting people from their houses and acting as a policeman by wrongfully arresting people in some cases for petty crimes. He was therefore seen as an apartheid collaborator.
Mr Msizi’s house was attacked with petrol bombs after Xaba attempted to find out whether the proposed attack was feasible or not. They knew that Mr Msizi was inside the house and intended that he should be killed in this attack. The house was attacked and burned down but Mr Msizi was not killed.
Clearly, the attack was politically motivated and the facts as disclosed by the applicants were not challenged by the victim, Mr Msizi. The committee is satisfied that the applicants have complied with the requirements of the Act and amnesty is GRANTED to the two applicants in respect of the attempted murder of Mr Msizi and the burning of his house during 1990.
Mr Msizi is declared a victim as defined by the Act and referred to the Reparation and Rehabilitation Department for attention.
10. SANDILE JEREMY NGUBENI AM 7298/97
The applicant applies for amnesty in respect of the murder and kidnapping of Sipho Makhatini and also in respect of the unlawful possession of an AK47 firearm and ammunition.
The applicant was a commander of an SDU in Thokoza in October 1993. During that month he, together with three (3) members of his unit went to collect Sipho Makhatini. Sipho Makhatini, according to the applicant, was a member of the IFP and was often seen in the company of IFP groupings. He used to participate in IFP celebrations of their killing of members of the SDU in the area. He also participated in political attacks on the members of the ANC and other residents in the area. He was also party to killing pregnant women attached to the ANC because they were giving birth to prospective members of the ANC. He was therefore, as far as the applicant was concerned, active in committing violent crimes against supporters of the ANC.
He took the decision that Sipho should be killed. Consequently he and his colleagues went to Sipho’s home, kidnapped him and took him to a place referred to as "danger zone" in Thokoza.
The applicant was unlawfully armed with an AK47 and ammunition. He shot Sipho when they arrived at Danger Zone. As a result Sipho died.
The Committee is satisfied that the offences were committed for political reasons and that full disclosure of the facts related to the commission of the crimes has been made.
In the result, the Committee is satisfied that the requirements of the Act have been complied with and accordingly, amnesty is GRANTED to the applicant for the kidnapping and murder of Sipho Makhatini and for the unlawful possession of an AK47 and ammunition used in the commission of the offences.
11. CHICHELA ESSAU MACHITJE AM 7634/97
The applicant applies for amnesty in respect of the crime of an undetermined number of murders, the unlawful possession of firearms, ammunition and explosives.
The applicant became part of the SDU structures in Thokoza during September 1990. He was encouraged to do so by the frequency of violent attacks on members of the ANC by, who he says, were IFP structures. He was appointed organiser of the SDU in the area. He was handed an AK47 firearm and ammunition which he thereafter possessed unlawfully.
Sometimes soon thereafter, his grouping received information that an identified IFP grouping intended to attack a section of Thokoza. In a preemptive attack on that grouping the applicant, with his group, attacked their opponents. The applicant shot at this group. He is unaware if anyone was injured or killed as a result, though it seems that the ensuing battle lasted for about two days.
As part of his duties and in his capacity as organiser of the SDU, he held in safekeeping a number of firearms, ammunition and explosives. He also distributed arms, ammunition and explosives at various times, in order to equip members of his SDU to fulfill their "duties" as such.
His evidence as a whole fits in with the general events that occurred in that area at that time. While applicant has applied for amnesty in respect of an undetermined number of murders, he is not sure if anyone was killed or indeed injured. Neither has he said whether anyone was injured or killed in that attack as a whole. He however intended that people should be injured and was aware of the fact that people could die as a result of his or his group’s actions.
In the circumstances then, it is clear that he would be guilty of attempted murder rather than murder.
The Committee is satisfied that the applicant’s action pertaining to this application was motivated by political considerations and the he has testified to all the relevant facts regarding the commission of the crimes.
In the result, the applicant is GRANTED amnesty in respect of:
(a) An undetermined number of attempts to murder of an undetermined number of unidentified people, committed in Thokoza during or about September 1990;
(b) The unlawful distribution and possession of an undetermined number of firearms, associated ammunition and explosives in Thokoza during September 1990.
12. MESHACK TSEKO THULO AM 7714/97
The applicant applies for amnesty in respect of the kidnapping of an unidentified person, for the unlawful possession and dealing in approximately three thousand rounds of various types of ammunition.
He was a member of the SDU structures in Thokoza from about 1990. During 1993, when a group of IFP members were going to the graveyard and discharged their firearms, the applicant and his colleague came across an unidentified person wearing a red head band which was normally associated with the IFP groupings. The applicant and his group then took this person to Unit F in the area. The unidentified person was reluctant to accompany them but was forced to go with.
The applicant also, relying on reports, believed that this person was involved in many crimes, including kidnapping, which were politically motivated. The person was left at a meeting in Unit F and the applicant proceeded to go and buy ammunition which was part of his duties as a member of the SDU. On his return to Unit F, he unexpectedly found that the person had been killed. He thought the person would be questioned, probably in respect of those whom he had allegedly kidnapped. He had nothing to do with the death of that person.
The applicant’s evidence fits in with the general pattern of the events of the time in that area. The Committee is satisfied that the applicant’s actions were politically motivated and that he has disclosed all the relevant facts regarding the commission of the offences for which he is applying for amnesty.
In the result, the applicant is GRANTED amnesty in respect of the kidnapping of an unidentified person in 1993 and also for the unlawful dealing, distributing and possession of an undetermined amount of ammunition during the period 1993 and 1994.
13. MOLEFE MICHAEL SELEPE AM 7154/97
The applicant applied for amnesty in respect of offences related to two incidents:
1. The robbery of firearms at the Kliprivier Police Station on or about 15 December 1993. 2. The transport of weapons from Duduza to Thokoza and incidents related thereto which occurred at Dawn Park.
In his application and evidence the incidents were referred to as the Kliprivier Police Station and the Dawn Park incidents.
At the hearing it transpired that the above incidents included several offences which were not specifically mentioned. The committee accepted that it was applicant’s intention that all the offences related to the two incidents should be regarded as falling within the ambit of the application.
The applicant also testified about other incidents which were not by any stretch of imagination connected to the above mentioned two incidents. The committee will not deal with the evidence on the offences in that regard because that would amount to inserting a new application after the cut off date for the filing of applications. It would also involve hearing matters which were not investigated and in respect of which victims and interested parties received no notification.
A. The Dawn Park Incident – 30 October 1992
The committee in analysing the evidence in respect of the so called Dawn Park incident concluded that this incident related to the following offences:
1. The robbery of the motor vehicle belonging to Mr Tshabalala. The said bakkie was used in committing the offence related to the illegal transportation and possession of firearms and ammunition.
2. The murder of Mr Glen Thompson in Dawn Park on 30 October 1992.
3. The attempted murder of Mr Sidney Gehling in Dawn Park on 30 October 1992.
4. The unlawful transportation and possession of fire arms and ammunition on the 30 October 1992 at Duduza and Dawn Park.
B. The Kliprivier Police Station incident which involved the following offences:
1. Robbery of an undetermined number of firearms and ammunition which included pistols, R4 and R1 rifles and the illegal possession of the said firearms and ammunition. The said robbery occurred at the Kliprivier Police Station on or about 15 December 1993.
2. The unlawful transportation of the said weapons and ammunition and the unlawful distribution and the unlawful distribution thereof soon after 15 December 1993 in Thokoza.
3. The assault on two unidentified policemen on the said date at the Kliprivier Police Station.
The applicant testified that he was the commander of an SDU in the Slovo Section, Thokoza. They needed arms and ammunition to protect themselves in the then ongoing war situation.
The next incident related to the robbery of Mr Tshabalala’s motor vehicle and the shooting of Thompson and Gehling. The applicant received a call from his commander to collect "material" in Duduza. He knew it was firearms and such like items. In order to avoid quick identification the applicant and his associates then planned and successfully effected the robbery of a motor vehicle that belonged to Mr Tshabalala. They used it to travel to Duduza where they collected the firearms referred to earlier. This they did towards the evening on their way back to Thokoza through Vosloorus. At Vosloorus they encountered a road block. They therefore deviated from their original route and landed up in Dawn Park.
His colleagues Vusi and Thami were in the back of the panel van they were travelling in. They parked of and while Vusi was relieving himself a short distance away, they realised another motor vehicle parking off close by and the door opening up. Vusi, who was near that vehicle screamed that the occupants thereof were preparing to shoot at the applicant and his passengers. The applicant immediately thought that these people were associated with the road block and had followed them to Dawn Park. Shooting then occurred.
The applicant saw Vusi lying on the ground. A pitched gun battle ensured thereafter. Vusi was left behind when the applicant retreated while still being fired upon. Thami was also injured. He also remained behind. When the applicant heard the sound of a police siren he escaped after a short battle with the police.
As far as the Kliprivier Police Station incident is concerned the applicant testified that on 15 December 1993 he was instructed by his commander Bra Kubeka to go to the Kliprivier Police Station to disarm those at the police station of their fire arms and take these. It seems that Kubeka had arranged the applicant to be accompanied by other members of the SDU.
When they arrived at the police station, they were all armed with firearms. The two policemen there were assaulted, threatened and robbed of the firearms that were in the safe. The telephone wires were cut so as to facilitate a successful get away from the police station. The weapons were then taken to their area of residence and left in the custody of their commander to their area of residence and left in the custody of their commander Bra Kubeka. These offences were committed to equip the members of the SDU to protect the people of the area.
It is clear that the applicant committed the offences for political reasons. Furthermore he has disclosed all the relevant facts pertaining to the offences committed during or related to the incidents culminating at Dawn Park or at the Kliprivier Police Station. The committee is satisfied that the application has complied with the requirements of the Act in respect of those two broad incidents.
The next of kin of Mr Glen Thompson are recommended as victims in terms of Section 22 of Act 34 of 1995 as well as Mr Sidney Gehling.
In the result amnesty is GRANTED as follows:
A. THE DAWN PARK INCIDENT:
(i) Robbery of the motor vehicle belonging to Mr Tshabalala;
(ii) Unlawful possession of an undetermined number of firearms and ammunition;
(iii) Unlawful transportation and distribution of an undetermined number of firearms and ammunition;
(iv) The murder of Mr Glen Thompson;
(v) The attempted murder of Mr Gehlig.
B. THE KLIPRIVIER POLICE STATION INCIDENT:
(i) Robbery of an undetermined number of firearms and ammunition;
(ii) Unlawful possession of an undetermined number of firearms and ammunition;
(iii) Unlawful transportation and distribution of an undetermined number of firearms and ammunition;
(iv) Assaults on two unidentified policemen during the aforementioned robbery.
SIGNED AT CAPE TOWN ON THIS THE ______DAY OF ______2000.
______
JUDGE R. PILLAY
______
JUDGE C. DE JAGER
______
JUDGE N.J. MOTATA AC/2000/140
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.
KING LEBEA 1ST APPLICANT
(AM 6101/97)
TITUS LEBEA 2ND APPLICANT
(AM 6105/97)
DECISION
The applicants are applying for amnesty in respect of the following offence:
1. Housebreaking with the intention to rob and robbery with aggravating circumstances on 10 February 1991.
2. The attempted murder of Andries Johannes Jacobus van Tonder and his wife Ina van Tonder on a farm near Masselspoort on 10 February 1991.
3. The illegal possession of firearms on the aforementioned date and at the aforementioned place.
The applicants testified that they were members of the PAC and formed part of the Task Force. They were instructed by their commander Themba Ncapayi to attack the van Tonders’ farm and to get weapons, money or any articles that could be of assistance to their organisation in the struggle. Titus was in command of the unit of four, who carried out the operation. He, the applicant King Lebea, Abram Smit alias Donuzi and Samuel Mokhethi proceeded to the farm on the evening of 09 February 1991 in order to carry out the order "to repossess". Titus Lebea was armed with a panga, Samuel Mokhethi had a knife and King Lebea carried a 9mm pistol. Donuzi was unarmed.
After whiling away time on a nearby farm at a tavern, they proceeded to the van Tonders’ farm where they arrived around about 02h00. King Lebea broke a window through which his co-perpetrators gained entrance into the house while he remained outside to keep guard.
It is common cause that they were confronted on the farm by Mr van Tonder and his wife. A shoot out followed during which Titus Lebea was fairly seriously wounded but they managed to wound van Tonder seriously with the panga. King Lebea, on hearing the shots, charged into the house to assist. He managed to wound Mrs van Tonder but was himself wounded in the process.
They left the house and carried Titus Lebea to a nearby rondawel. They went back to the house finding that the farmer and his wife had in the meantime escaped. They searched the house, found cash, jewellery, and a firearm as well as the keys of the motor car. They used the motor car to drive to the hospital where both Lebea and his brother received medical attention and were later arrested.
The van Tonders attended the hearing and after hearing the evidence told the committee that they forgive the applicants and would not oppose the application.
It was indeed one of the few occasions where the Committee was privileged to witness a moving reconciliation. We wish to thank all people involved.
Although there were contradictions in the evidence given by the two applicants, the Committee concluded that they did disclose all material facts in regard to the offence and that the offences were associated with a political objective. They were members of APLA and they acted on instructions and in support of the organisation.
The committee is of the opinion that Mr Andries Johannes Jacobus van Tonder and Mrs Ina van Tonder C/O Attorneys McIntyre and van der Post, No 12 Barnes Street, P.O. Box 540, Bloemfontein 9300 should be considered to be victims in terms of Act 34 of 1995.
In the result amnesty is GRANTED to the applicants Titus and King Lebea in respect of the following offences:
1. Housebreaking with the intention to rob and robbery with aggravating circumstances on 10 February 1991;
2. The attempted murder of Andries Johannes Jacobus van Tonder and his wife Ina van Tonder on a farm near Masselspoort on 10 February 1991;
3. Illegal possession of firearms on the aforementioned date and at the aforementioned place.
SIGNED ON THE ______DAY OF ______2000.
______
MOTATA J.
______
DE JAGER A.J.
______
N. SANDI AC/2000/141
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.
ERIC GOOSEN 1ST APPLICANT
(AM 4158/96)
WILLEM JOHANNES MOMBERG 2ND APPLICANT
(AM 4159/96)
JAQUES HECHTER 3RD APPLICANT
(AM 2776/96)
JAN HATTING CRONJE 4TH APPLICANT
(AM 2773/96)
DECISION
The Applicants make application in terms of Act 34 of 1995 as amended ("the Act") for amnesty in respect of the kidnapping of and the assault on an unknown person.
The Applicants were all members of the security branch of the South African Police as it was then known. They were all linked to what was then referred to the Northern Transvaal Division of the Security Police.
The background and history of the members of this division of the Security Branch is documented in a previous application of this nature. It is dealt with in the decision that emanated from that application. It is to be found in the decision of Cronje J.N. (AM 2773/96) dated 17 February 1999. We do not think it necessary to repeat it in this decision. Suffice to say that the findings which stem from such evidence regarding the background and history are conclusions with which we agree.
The events from which these applications arise occurred during the period July to December 1987. It should be mentioned that these offences are but two of very many committed by the Applicants and some of their colleagues.
In defending the government of the day from the anti-apartheid forces, the South African Police, especially the Security Police, employed tactics which would not found to be acceptable. It included the commission of crimes.
However in order to resist the anti-apartheid forces, the police needed to be informed in order to prepare themselves to do what they thought was necessary to protect the regime of the day and in so doing, apartheid itself. It is in the quest for this type of information that the Applicants resorted to these offences for which they apply for amnesty.
Momberg and Goosen testified that they were requested by Van Jaarsveld, their senior officer, to assist in the interrogation of a security guard. It was explained to them that Mamasela, a colleague, had information that the guard’s brother was member of the military wing ("MK") of the African National Congress ("ANC"). They accompanied Van Jaarsveld and Mamasela to the United Building Society building in Pretoria. The guard was employed there. Mamasela enticed him to the vehicle they were using and he was then taken away against his will. They took him to the vicinity of Warmbaths, near which the family home of the guard was situated.
The guard was confronted with an allegation that his brother was a member of MK. When he denied this, he was assaulted by all who were in the Applicants’ group.
He was assaulted with open hands and fists. Despite this, the guard continued to deny the allegation and did not give any other information.
It was suggested by Van Jaarsveld that he be killed possibly to avoid charges of kidnapping and assault or possibly also to avoid disclosing that they had at least a suspicion of his brother’s possible affiliation.
However Momberg spoke to him and informed the rest that the guard had agreed to work with him and become his informant. The idea of killing him was then abandoned.
Cronje was the commanding officer of the division at the time. Hechter was a captain. Both of them testified that they did not have any independent recollection of this incident. They however both accept responsibility. They both testified that by the nature of things and the frequency and development of their activities, it became almost a formality to allow such offences to be committed in the quest to gain information in order to protect apartheid and its supporters. In the circumstances they both accept that they must have sanctioned the operation and take responsibility for it.
Van Jaarsveld appeared at the hearing as an implicated person. He denied even taking part in the operation. Significantly though, upon asked to say why he said he did not participate therein, he said that if he did, he would have remembered it as he had a very good memory. He could not remember the incident and it follows therefore that he did not participate therein.
It is not probable that the Applicants would have made this application which has much less criminal implication by comparison to others if it did not occur. Furthermore Van Jaarsveld’s denial is based on very flimsy reasoning. The reason for his denial does not justify a conclusion that the incident did not occur as described by the Applicants.
The Act provides that amnesty shall be granted if the formalities have been complied with, that the offences for which amnesty is sought were committed for political reasons and that the Applicants made full disclosure of the facts pertaining to the commission of the offences.
The Committee is satisfied that the requirements of the Act have been complied with and amnesty for the kidnapping of and assault on the unknown victim is GRANTED to all four Applicants.
DATED AT CAPE TOWN THIS ______DAY OF ______2000.
______
A. WILSON, J.
______
R. PILLAY, J. ______
MR W. MALAN AC/2000/142
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.
GARY JOHN KRUSER 1ST APPLICANT
(AM 5542/97)
BETHUEL MONDLI ZUMA 2ND APPLICANT
(AM 5544/97)
MARAINSAMY SINGARAM 3RD APPLICANT
(AM 5545/97)
JACOB MODISE MOLEFE 4TH APPLICANT
(AM 5546/97)
BAFANA EDDIE KHUMALO 5TH APPLICANT
(AM 5547/97)
COLSON TEBOGO BEEA 6TH APPLICANT
(AM 5548/97)
STEPHEN MAROLE MOOLMAN 7TH APPLICANT
(AM 5549/97)
MOSES VELI LLALE 8TH APPLICANT
(AM 5550/97)
NEO POTSANE 9TH APPLICANT
(AM 7159/97)
MATHEDI SAMUEL MANGENA 10TH APPLICANT
(AM 5275/97) SMANGALISO PATRICK SIMELANE 11TH APPLICANT
(AM 5552/97)
DECISION
Introduction:
1. These applications or amnesty arise out of two shooting incidents that occurred on 28 March 1994. Initially there were 13 applicants.
Applicants 1 to 10 applied for amnesty in respect of a shooting incident at a building known as Shell House, which is situated in downtown Johannesburg. This building houses the offices of the ANC. It is where the headquarters of the ANC are located. It is bounded on the north by De Villiers Street, on the west by King George Street, on the east by Plein Street and on the south by Klein Street.
Applicants 11 to 13 applied for amnesty in respect of a different incident that occurred at a building known as Lancet Hall. This building is also in downtown Johannesburg and is situated at the corner of Von Wielligh and Bree Streets. It also houses the offices of the ANC.
Applicants 11 to 13 subsequently withdrew their applications for amnesty. In the result only the twelfth applicant, Mr Smangaliso Patrick Simelane, is an applicant in respect of the Lancet Hall shooting.
2. During these two shooting incidents, an estimated 9 people were killed.
3. The applications are opposed by the victims and families of the deceased.
4. It is necessary at the outset to deal with one of the objections raised by the objectors to the applications by Mr Bafana Eddie Khumalo and Mr Neo Potsane, the fifth and ninth applicants respectively.
5. The objectors took the point that the affidavits filed by these applicants in support of their applications had not been properly attested to. In our view, whatever defect may have been present was subsequently cured by the evidence of these two applicants. We are satisfied that their applications were properly before the committee.
Background
6. In order to put the two shooting incidents in context, it is necessary to sketch the background events.
7. Prior to the first democratic elections, the IFP had indicated that it would not take part in the elections. It promised to embark upon an anti-election campaign. Prior to 28 March 1994 the IFP requested permission to hold a march on 28 March. This was probably the commencement of the anti-election campaign by the IFP.
8. It was submitted on behalf of the objectors that the march was not a political event but that it was a march by Zulu-speaking Africans in support of King Goodwill Zwelithini. In our view the march cannot be construed otherwise than as a political event. It was requested by the IFP. Those who took part in the march associated themselves with the objects of the march. What the individual marchers may have thought is, in our view, irrelevant. In any event, even on the belief of those marchers who thought that they were attending a rally in support of King Goodwill Zwelithini, that in itself was a political event. We say this because it was in support of the demands of the King during the political negotiations. On any analysis, therefore, the march was a political event. 9. Prior to 28 March ANC officials had received an intelligence report indicating that Shell House would be attacked by the IFP. In the early morning of 28 March there were reports of incidents of shootings in the townships and on the trains by IFP supporters. At approximately 08h00 on 28 March there was a shooting incident at Lancet Hall. There were further reports of incidents of shooting in and around the city. Given the tensions which existed between the IFP and the ANC and the reports received by the ANC of a possible attack on Shell House, there was a reasonable apprehension at Shell House that an attack might be imminent. It is this apprehension of a possible attack that led to the increase of the security at Shell House. The security personnel were put on high alert.
10. The apprehension of an attack on Shell House was further heightened by the group of marchers who went past Shell House. These marchers were armed with traditional weapons. They were singing traditional war songs.
11. The possible attack on Shell House, which is the headquarters of the ANC, was perceived by the ANC as part of the IFP anti-election campaign aimed at disrupting the elections.
12. During the course of the day approximately fifty people lost their lives violently in and around central Johannesburg and numerous other incidents of violence and damage to property were reported to the police.
13. It is against these background events that the shooting incidents at Lancet Hall and Shell House must be understood. Seen in this context the shooting incidents occurred in a political context.
The Lancet Hall Shooting:
14. Mr Smangaliso Patrick Simelane, the twelfth applicant, was the only applicant who was involved in the Lancet Hall shooting. Two incidents occurred at Lancet Hall. The first occurred at approximately 08h00 when a group of marchers stood near the entrance to the building. They were armed with traditional weapons and were singing traditional war songs. One of the marchers threatened the guards. Mr Sello Magagula, one of the guards, fired a shot in the air and the marchers fled the area.
The second incident occurred at approximately 10h00 when shots were heard coming from the street level. At the time Mr Simelane was in the basement. He went up to the gate where he saw a large group of people armed with an assortment of weapons. This group proceeded towards the driveway and tried to push the gates open. Mr Simelane fired a single shot with a shotgun at the group and the group retreated from the gate.
15. Mr Simelane conceded that he did not issue any warning before shooting. He also failed to fire a warning shot. There is nothing in his evidence to suggest that a warning shot would not have repelled the marchers. Consequently, there is nothing in his evidence to indicate that he was justified in firing a shot directly at the marchers. It is clear that at the time he fired at the group of marchers he appreciated the possibility that someone would be shot and injured or killed. He nevertheless fired recklessly, as to such eventuality. Shooting them in these circumstances constituted an offence or a delict. In the result we are satisfied that the acts of Mr Simelane constituted an offence or a delict as envisaged in the Act.
The Shell House Shooting:
16. Save for Mr Kruser, the first applicant, all the applicants who are seeking amnesty in relation to the Shell House shooting admitted that they shot at the marchers. Mr Kruser only gave orders to shoot and to cease fire. Some of the applicants testified that they shot at the marchers in response to the orders given by Mr Kruser, while others testified that they shot after they had heard gun shots and thought that they were being attacked. Mr Kruser too, testified that he gave orders to shoot after he had heard gun shots and thought that they were under attack.
17. Except for Mr Jacob Modise Molefe, the fourth applicant, none of the applicants testified that they saw any of the marchers shooting at them. Some of the applicants did not even see any firearms amongst the marchers. It was Mr Jacob Modise Molefe who testified that he saw a big man wearing a red T-shirt carrying an AK47. He further testified that he saw this man shooting. However, under cross-examination he admitted that he did not see this man shooting.
18. The perception therefore, that Shell House was under attack, was based purely on the shooting which they heard and which they thought was being directed at Shell House.
19. On the evidence of the independent witnesses, the shooting started on the ground floor of Shell House. Sergeant Golach, Mr Jimmy Stephens and Mr Mhlaba testified that an ANC security guard who was on the ground floor of Shell House fired shots at the marchers. It is common cause that, given the situation that prevailed at the time, it was difficult to make out where the shots came from. It is, therefore, probable that the applicants mistook this shooting as coming from the marchers when in fact it had come from ANC security guards.
20. Having regard to the confusion which prevailed at the time and the nature of evidence given at the hearing, it is not possible to determine whether those first shots were fired by any of the applicants. Messrs Zuma, the second applicant, and Rama are the only persons, on the evidence, who fired shots prior to the order to shoot. According to Mr Zuma they only fired warning shots. They did not fire at the crowd. Mr Zuma testified that he only fired at the marchers after the orders to shoot had been given.
21. In our view it is not necessary to determine whether any of the applicants fired the first shots at the crowd. What is relevant is that the first shots were fired by the ANC security that was stationed on the ground floor. It was difficult at the time to make out where these shots came from. It is this shooting which was mistaken by the applicants as coming from the marchers. This shooting prompted Mr Kruser to give orders to shoot at the marchers while the other applicants who did not hear the orders simply shot at the marchers in response to this shooting, believing that they were under attack.
22. On the evidence as a whole we are satisfied that there was no attack on Shell House by the IFP marchers. However, that does not mean that the conduct of the applicants in shooting at the marchers was without justification. The applicants, upon hearing gunshots, thought that they were under attack. This perception on their part was not unreasonable. There were reports that Shell House would be attacked. There were marchers in the vicinity who were armed and who were singing traditional war songs. The situation was volatile. It was difficult to make out where the shots came from. In these circumstances the shots could easily have been mistaken for an attack on Shell House.
23. However, that is not the end of the matter. Objective ballistic and medical evidence indicates that the shooting was without justification. In particular, the medical reports indicate that most of the deceased were shot after they had turned back. Indeed, all the applicants who fired shots at the marchers admitted that they may well have shot at the marchers after the marchers had turned back and were running away. On this aspect Mr Jimmy Stephens testified that the ANC guards continued to shoot at the marchers as they were dispersing and running away. Mr Bafana Mhlaba who was amongst the marchers also testified that as they were running away they were shot at by the ANC guards.
24. We are satisfied that the applicants who shot at the marchers continued to do so after the marchers had turned back and were running away. At this stage the marchers did not pose any threat to the ANC guards. Such shooting was, therefore, without any justification. It was, therefore, unlawful. Mr Kruser gave the orders to shoot and he must take full responsibility for the conduct of the applicants who shot at the marchers. He failed to give orders to cease fire earlier but allowed the shooting to go on for too long. In the result we are satisfied that the applicants committed acts which constituted offences or delicts as envisaged in section 20 (2) of the Act.
Submission of Behalf of the Objectors:
25. The main objections by the objectors to the granting of the amnesty were two fold: first, it was submitted that the march was not a political event and therefore, the reaction to the marchers by the applicants could not have been politically motivated; and second, as the objective evidence shows that the marchers did not attack the applicants, the applicants were untruthful in suggesting that they were under attack by the marchers.
26. We have already found that the march was organised by the IFP as part of its anti-election campaign. Indeed, the documents handed in at the hearing indicate that the march was organised by the IFP.
27. It was further submitted on behalf of the objectors that some of the marchers thought they were going to an Imbizo in support of the King’s position and that this removed the marchers from a political context. In our view a march in support of the King at the time was an act of political support for the King during the negotiations. It was intended to secure for the King certain powers under the Constitution. Therefore, a march in support of the King was itself a political event. In any event, the fact that some of the marchers were unaware of the object of the march as an anti-election campaign by the IFP does not detract from the nature of the event. In our view, what the individual marchers thought they were participating in is irrelevant in the determination of the political context in which the march occurred.
28. The submission that the applicants were untruthful when they claimed that they were attacked by the marchers is premised on the assumption that the applicants stated as a fact that they were attacked. The import of the evidence of the applicants is to the effect that they thought they were under attack from the marchers. This perception arose from the fact that they heard gunfire and in the confusion it was difficult to determine where the gunfire was coming from. It was not unreasonable of them to have believed in the circumstances that it came from the marchers. That objective evidence indicates that there was no shooting at the guards and, therefore, that the perception was erroneous does not detract from the fact that the applicants had this perception which, in our view, was a reasonable one. It is in this context that their evidence of attack must be understood.
29. Finally, the fact that the applicants testified that they believed at the time that they were acting in self- defence or in defence of property, does not detract from the fact that their conduct was unlawful. The admission by the applicants and their conduct, viewed objectively, was unjustified is, in our view, an admission that their conduct was unlawful and, therefore, constituted a delict or an offence.
Conclusion:
30. In all the circumstances we are satisfied that the applicants have satisfied the requirements of the Act. In the result, amnesty is hereby GRANTED to all the applicants for all offences and delicts arising from their participation in the shooting incidents which occurred on 28 March 1994 at Shell House and at Lancet Hall.
31. The relatives and dependents of the following deceased are found to be victims and are accordingly referred to the Reparation and Rehabilitation Committee, in terms of Section 22 (1) of the Act:
Mfanizakhe Majozi;
Sibuku Petros Langa;
Zantonto Johannes Khumalo;
Banda Wellington Sithole;
Raphael Veli Ntombela;
Mziwakhe Jeremiah Khanyile;
Conrad Ncobela Kohla.
32. The following persons are found to be victims and are accordingly referred to the Reparation and Rehabilitation Committee, in terms of Section 22(1) of the Act:
Musikanyise Nicholas Mncube;
Mbuyiseni Nkosi;
Lucky Mfanu Nzuza;
Phoyisa Gasela;
John Mpikayipheli Hlatswayo;
Lukas Thembinkosi Njoko;
Simon Mbhele;
Mvimbela Mungwe;
Muzikayize Ntombela;
Thembise K. William Mhlongo;
Rista B. Buthelezi;
Anthony Mungwe;
Silwayiphi Alfred Maphanga;
Amos Sibusiso Ngobese;
Bafana K. Mahlaba.
33. During the course of the hearing the Committee was informed that a number of other people were injured during the course of the incidents. However, none of these injured persons have either testified or attested to affidavits before us and accordingly we have no details of such people. Nevertheless, it is clear that should they come forward and satisfy the Reparation Committee that they were injured during the course of the incidents they would be entitled to be treated as victims within the meaning of the Act.
SIGNED:
______
JUDGE H. MALL
______
JUDGE S. NGCOBO
______
MS. S. KHAMPEPE
______MR I. LAX
AC/2000/143
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.
JAMEEL CHAND APPLICANT
(AM 7062/97)
DECISION
Having considered the application, amnesty is hereby GRANTED to the Applicant in respect of the offence of sabotage, including any competent verdict, encompassed in the following incidents:
A. LENASIA
1. Limpet mine attack on home of member of President’s Council I. Jugbhai.
Damage to property no injury or loss of life.
On or about 28 July 1988
2. Limpet mine attack on home of member of Lenasia Management Committee member R. Ebrahim.
10 September 1988
Damage to property no injury or loss of life.
3. Limpet mine attack on Lenasia Bus Service- Private company.
Damage to property and no loss of life or injury.
10 September 1988
4. Limpet mine attack on offices of the House of Delegates.
Damage to property no loss of life.
10 September 1988
5. Limpet mine attack on offices of Lenasia Management committee. Damage to property no loss of life.
31 October 1988
6. Limpet mine attack on National Peoples Party office.
Damage to property no loss of life or injury.
1 October 1987
B. JOHANNESBURG
1. Limpet mine attack on city hall.
14 March 1988
Damage to property no loss of life.
2. Limpet mine attack on OK stores-private company.
Damage to property and no loss of life or injury.
28 April 1988
3. Limpet mine attack on Score Furnishers.
Damage to property no loss of life or injury.
28 April 1988
4. Limpet mine attack on SA railway service. Railway transport truck.
Damage to property and no loss of life or injury.
2 April 1988
5. Limpet mine attack on Yeoville police station.
6 April 1989
Damage to property and no loss of life or injury.
6. Limpet mine attack on Cleveland police station.
Damage to property and no loss of life or injury. In and during April 1989.
7. Limpet mine attack on Hillbrow police station staff quarters.
11 December 1989
Damage to property and no loss of life and injury.
C. RANDFONTEIN
1. Limpet mine attack on Randfontein police station. Damage to property and no loss of life or injury. 15 December 1988. 2. Limpet mine attack on Regional Services Council offices.
15 December 1988
Damage to property and no loss of life or injury.
D. CARLTONVILLE
1. Limpet mine attack on City Hall.
3 March 1988
Damage to property and no loss of life or injury.
2. Limpet mine attack on electricity pylon.
3 March 1988
Damage to property and no loss of life or injury.
E. LAUDIUM
1. Limpet mine attack on police station. 22 September 1988.
Damage to property and no loss of life or injury.
2. Limpet mine attack on home of Mr Abrahamjee - Member of Parliament.
Damage to property and no loss of life or injury.
12 June 1988
3. Limpet mine attack on member of Laudium Management Committee S.D. Goolam. 22 September 1988
Damage to property and no loss of life or injury.
4. Limpet mine attack on another member of management committee Dr. Shamiss.
Damage to property and no loss of life or injury.
12 June 1988
F. ACTONVILLE
1. Limpet mine attack on municipal offices.
3 September 1988
Damage to property and no loss of life or injury.
G. RYANSOORD
1. Limpet mine attack on home of MP Salam Mayet. 4 January 1989
Damage to property and no loss of life or injury.
H. PALMRIDGE 1. Limpet mine attack on councillor A. Lambet.
30 August 1989
Damage to property no injuries or death.
I. AZAADVILLE
Limpet mine attack on home and management committee member Hassen Varachia.
Damage to property and no loss of life or injury.
18 July 1989.
J. KLIPTOWN/KLIPSPRUIT
1. Limpet mine attack on railway line.
21 August 1989
Damage to property and no loss of life or injury.
K. BOKSBURG
1. Limpet mine attack on Receiver of Revenue offices. 2 December 1988
Damage to property and no loss of life or injury.
L. BRAKPAN
1. Limpet mine attack on government building Home Affairs. In and during December 1988
Damage to property and no loss of life or injury.
M. BENONI
1. Limpet mine attack on Magistrates Court.
9 December 1988
Damage to property and no loss of life or injury.
N. MAYFAIR
1. Limpet mine attack on electricity substation. 6 March 1989
Damage to property and no loss of life or injury.
O. LANGLAGTER
1. Limpet mine attack on railway line at Langlagter.
Damage to property and no loss of life or injury.
10 April 1988 P. PAGEVIEW
1. Limpet mine attack on substation.
21 December 1987
Damage to property and no injury or loss of life.
O. VEREENIGING
1. Limpet mine attack on magistrates court.
Damage to property and no loss of life or injury. In and during March 1988
DATED AT CAPE TOWN ON THIS ______DAY OF ______2000.
______
______
______
AC/2000/144
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.
ZAMOKUHLE GREGORY SITHOLE 1ST APPLICANT
(AM 5905/97)
SITHEMBISO RODNEY TEMBE 2ND APPLICANT
(AM 5991/97)
DECISION
The two applicants have both applied for amnesty in respect of the following offences:
1. Murder of Johannes Theodorus Kemp on 9 October 1990 at or near Durban for which they were both sentenced to nine (9) years imprisonment in the Durban and Coast Local Division of the Supreme Court under Case No. CC56/91 on 15 May 1992.
2. Attempted murder of Sunelle Elize Lourens on 9 October 1990 at or near Durban for which they were both sentenced to 3 years imprisonment in the Durban and Coast Local Division of the Supreme Court under Case No. CC56/91 on 15 May 1992.
3. Attempted murder of Adine Leigh Anne Pearce on 9 October 1990 at or near Durban for which they were both sentenced to 3 years imprisonment in the Durban Coast Local Division of Supreme Court under Case CC56/91 on 15 May 1992.
4. Attempted murder of Alberto de Arzich Magalhaes de Lima on 9 October 1990 at or near Durban for which they were both sentenced to 3 years imprisonment in the Durban and Coast Local Division of the Supreme Court under Case No. CC56/91 on 15 May 1992.
5. Attempted murder of Ryan Christopher Kruger on 9 October 1990 at or near Durban for which they were both sentenced to 3 years imprisonment in the Durban and Coast Local Division of the Supreme Court under Case No. CC56/97 on 15 May 1992.
6. Attempted murder of Floretta York on 9 October 1990 at or near Durban for which they were both sentenced to 3 years imprisonment in the Durban and Coast Local Division of the Supreme Court under Case No. CC56/91 on 15 May 1992.
7. Attempted murder of Maria Lovverdis on 9 October 1990 at or near Durban for which they were both sentenced to 3 years imprisonment in the Durban and Coast Local Division of the Supreme Court under Case No. CC56/97 on 15 May 1992.
The sentences in counts 3 – 7 were to run concurrently with the sentence in count 2.
Both applicants submitted the prescribed forms which were properly signed and properly attested to. The offences were committed before the cut-off-date and the forms were also received before the cut-off-date. Thus they have complied with the formal requirements of the Act in terms of Section 20 (1) (a) of the Promotion of National Unity and Reconciliation Act of 1995.
Both testified that they were supporters of the Pan Africanist Congress (PAC).
The victims were notified by way of an advertisement which was published in the newspaper. The application was not opposed. The victim who was present, Mrs Pearce only sought clarification on who the real attacker was and this was done by way of cross examination by the Evidence Leader.
THE INCIDENT
The first applicant Zamokuhle Gregory Sithole testified that he was recruited to the PAC by a certain Howmore Ngcobo. He attained full membership in 1989 and used to attend meetings which were held in the Butterworth Hotel in Durban. One of the issues which used to be discussed was the issue of the White People who were ill-treating Black People. They also realised that Black political organisations like the African National Congress (ANC) and the Inkatha Freedom Party (IFP) were fighting amongst themselves because of the whites. The resolution which they came to at these meetings was that Whites should be attacked at random in order to show the government that the PAC would not be stopped from struggling for freedom. They also perceived the state in the country as a situation of war as Barend Strydom had attacked Blacks at random and they also felt that the white people should also be attacked.
On 8 October 1990 Howmore Ngcobo came to the applicant’s home with other comrades. They decided to go to the Point Road in Durban as they knew that this place was frequented by white people. They decided at a meeting in Point Road where they met other comrades that a certain shop would be robbed where they would obtain knives and weapons which were going to be used to attack the Whites. They all knew that the attack was going to take place on 9 October 1990. At about 9.15 the following day they gathered, went to the shop which had been identified and robbed the shop owner of knives and other weapons. The applicant armed himself with two dagger knives. They went outside. The applicant testified that he stabbed two white females whom he could not recall. He was unable to say who caused the killing of one of the victims.
After this, the police came to the scene. There was shooting. He however was later apprehended together with the second applicant.
The second applicant confirmed the first applicant’s version. His testimony differed in that he did not attend the meeting at first applicant’s home on the 8 October 1990. He only joined the group at Point Road in the evening. He confirmed that the political objective which their group sought to achieve was to eliminate all whites who were perceived to be the enemy of Blacks and were also perpetrating human rights violations.
In order to be granted amnesty, the applicants must satisfy the Committee that:-
1. Their application comply with the requirements of the Act.
2. The act, omission, offences is an act associated with a political objective.
3. The applicant has made a full disclosure of all relevant fact.
With regard to these instances we are satisfied that the applicants acted in their capacities as members of the PAC. Although there was no evidence that the victims were involved in politics at all, their actions were in line with the policies of the PAC at the time. We are also satisfied that they committed such acts during the course of the conflicts of the past and that such acts are acts associated with a political objective. We are also satisfied that they have disclosed sufficient relevant facts.
In the result we are satisfied that the applicants have complied with the requirements of the Act and they are GRANTED amnesty in respect of all the offences that they have applied for.
The following persons who were injured or deceased are found to be victims and are accordingly referred to the Reparations and Rehabilitation Committee in terms of Section 22 (1) of the Act.
1. Relatives of Johannes Theodorus Kemp
2. Sunelle Elize Lourens
3. Adine Leigh Anne Pearce
4. Alberto de Arzich Magalhaes de Lima
5. Ryan Christopher Kruger
6. Floretta York
7. Maria Lovverdis
SIGNED AT CAPE TOWN ON THIS THE ______DAY OF ______2000.
______
ACTING JUDGE C. DE JAGER
______
ADV. F. BOSMAN
______
ADV. S. SIGODI AC/2000/145
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.
SIMON KHAKHA NGUBENI APPLICANT
(AM 3128/96)
DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The application relates to an incident which occurred on 18 December 1993 at Leeuwhof Prison, Vereeniging. Pursuant to the incident Applicant and a number of other persons were charged and tried in the Transvaal Provincial Division of the High Court on various counts under case no. CC71/95. Applicant was convicted of a number of offences which are more fully set out later in this decision. Pursuant to his said conviction, Applicant was sentenced to an effective 32 years of imprisonment.
Although the application was opposed on behalf of some of the victims of the incident in question, no other evidence was tendered at the hearing apart from the testimony of the Applicant. According to the evidence, Applicant left South Africa during June 1990 in order to undergo military training in camps of the African National Congress ("ANC") and its military wing Umkhonto weSizwe ("MK") in Uganda. He returned to South Africa during March 1992 and settled in the Vaal area. He became the commander of a self-defence unit ("SDU") in Evaton. Since his return to the country, he and his family were constantly harassed by the members of the then South African Police. He was arrested on various false charges and kept in custody. All of these charges were eventually withdrawn. Applicant was, however, charged with escaping from custody during one of his periods of detention and was eventually convicted and sentenced to 12 months imprisonment. This sentence was served, but Applicant was again arrested on counts of murder. He had no knowledge of these alleged murders. Applicant was often visited by the police throughout his periods of detention and even during the period that he was serving the sentence referred to. During these visits Applicant was removed from his place of detention by the police and was frequently assaulted and tortured. His numerous complaints to the head of the prison where he was held proved to be fruitless. Applicant mentioned his fate to his MK commander, Moses Mnzimande, who frequently visited him in prison. The commander indicated that it was necessary for Applicant to escape from prison in order to escape the situation he was facing and to relocate to an ANC camp in the former Transkei. The commander also undertook to raise the matter with the Headquarters. Subsequently and in execution of the plan to escape, the commander supplied Applicant with a F1 Russian made handgrenade on one of his visits to the prison. It was agreed that Applicant would use the handgrenade in order to take the head of the prison hostage on one of his visits to the cells. Applicant would then force the head of the prison to allow Applicant to escape from custody. Applicant kept the handgrenade in his locker inside the cell while waiting on an appropriate opportunity to implement the plan to escape. On 18 December 1993, a fight broke out in Applicant’s cell. Applicant realised that the prison warders would intervene to stop the fight and would thereafter search the cell for any weapons in accordance with their usual practice. In view of the fact that the handgrenade would obviously be discovered in such a search, Applicant decided to execute his plan immediately to avoid it being foiled by the prison warders confiscating his handgrenade. In the course of the fight inside the cell, the prison warders arrived and intervened. When they unlocked the cell, Applicant produced the handgrenade in order to secure a safe passage out of prison. At one stage, however, the handgrenade was knocked out of his hand by one of the prison warders and it fell to the ground. The handgrenade detonated killing three persons and injuring nine. Applicant attempted to escape but was later apprehended on the prison premises. He was subsequently charged and convicted as set out above.
Applicant now seeks amnesty in respect of all of the offences and delicts which arose from the incident described above. He indicated that his actions were politically motivated in that he was trying to escape the actions of the police who were conducting a campaign to harass and bring false charges against Applicant and other MK members in order to discredit the ANC. These actions were, moreover, aimed at disrupting Applicant’s political role in the community as a commander of a SDU. He intended to continue his political activities once he managed to escape.
Having carefully considered the matter, we are satisfied that the incident in question arose to Applicant executing a plan to escape decided upon jointly with his commander. There is no serious challenge to the version of the Applicant, which we accept as true in the circumstances. We are accordingly satisfied that the Applicant had made a full disclosure of all relevant and material facts as required by the Act. Moreover, we are satisfied that the incident constitutes an act associated with a political objective as envisaged by the Act. We accept that the original intention was not to use the handgrenade to kill anyone. The detonation was not directly caused by the Applicant, whose actions therefore cannot be said to be disproportionate in the circumstances.
We are accordingly satisfied tat the applications complies with all of the requirements of the Act and amnesty is hereby GRANTED to the Applicant in respect of all delicts and offences which resulted from the explosion of the handgrenade at Leeuwhof Prison, Vereeniging on 18 December 1993, more particularly all of the offences of which Applicant was convicted under case no. CC71/95 in the Transvaal Provincial Division of the High Court on 20 March 1995, including:
1. three counts of murder;
2. nine counts of attempted murder;
3. assault with intent to cause grievous bodily harm;
4. common assault;
5. possession of a handgrenade in contravention of Section 32(1)(b) of Act 75 of 1969;
6. attempted escape.
In our opinion all of the victims and the next-of-kin of the deceased in respect of the incident for which amnesty is hereby granted, are victims for the purposes of the Act and are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED AT CAPE TOWN THIS ______DAY OF ______2000.
______
D. POTGIETER, A.J.
______
J. MOTATA, A.J.
______
ADV. N. SANDI
AC/2000/146
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.
RONALD KASRILS 1ST APPLICANT
(AM 5509/97)
DAMIAN MICHAEL DE LANGE 2ND APPLICANT
(AM 7233/97)
IAN HUGH ROBERTSON 3RD APPLICANT
(AM 5891/97)
SUSAN CATHERINE DE LANGE 4TH APPLICANT
(AM 7234/97)
DECISION
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). First Applicant, Ronald Kasrils, is a high-profiled political leader and presently a member of the South African Cabinet. He has, at all material times, occupied positions of leadership and authority within the African National Congress ("ANC") as well as its military wing Umkhonto weSizwe ("MK"). He has been a member of the latter organisation since its inception. As part of his duties within MK, he established a unit within South Africa which operated under the command of Second Applicant, Damian Michael De Lange, during the period 1986 to 1988. The remaining two Applicants were members of this unit. The present matter relates to the activities of this unit and in particular to an attack on a communications tower at Linksfield Ridge, Johannesburg during or about late November 1987 and an attack on a military bus transporting South African Airforce personnel at Benoni on or about 1 March 1988. The main purpose of the applications is to expunge the criminal records of Second to Fourth Applicants which resulted from their conviction of various charges in the Regional Division of Northern Transvaal of the Regional Court sitting at Pretoria in Case No. 14/288/89. The charges in question are more fully set out later in this decision.
First Applicant has been conducting various operations, including the activities of the unit in question from exile and has accordingly never been charged with any of these activities. He is simply seeking amnesty in these proceedings in respect of the two attacks referred to above.
The only evidence presented at the hearing was that of the respective Applicants. Although the interests of some of the victims of the attack on the Airforce bus were protected by a legal representative who appeared at the proceedings, it was made clear that the applications are not being opposed. The facts and circumstances relating to the relevant incidents are accordingly uncontested. According to the evidence, Second to Fourth Applicants joined MK in exile where they received military training. Their unit was a specialized one established for the purpose both of collecting intelligence information and to carry out operations within South Africa. These activities were undertaken roughly during the period 1986 until the arrest of Second to Fourth Applicants during May 1988. The operations conducted by the unit fell within the ambit of the general orders given by First Applicant as well as the policy and liberation struggle conducted at the time by the ANC and MK. Both the communications tower and the Airforce bus constituted legitimate targets for attack in terms of this policy. These attacks were, moreover, executed in accordance with the relevant international conventions on warfare and insofar as the Applicants were concerned they were soldiers engaged in a just war for the liberation of their people from oppression. They took the necessary care to minimise any unnecessary risks to lives and property beyond that of their specific targets. Certain home made explosives were used in both attacks and the timing and location of both attacks were such that Applicants were satisfied that the main thrust of the attack would be directed at the specific targets. They accepted that in the course of the attack upon the bus, some of the nearby private properties were damaged, but they indicated that this is often the inevitable result of the conflict that raged in the country at the time. They were satisfied that reasonable steps had been taken to avoid or minimise this kind of consequence as far as possible.
Soon after the last attack, Second to Fourth Applicants were arrested and eventually tried and convicted of various offences which resulted from the said two attacks as well as some of the other activities of their unit. They were sentenced to long term imprisonment but were released in terms of the provisions of the Pretoria minute concluded between the ANC and the then South African government during August 1990.
Having carefully considered the matter, we are satisfied that the applications comply with all of the requirements of the Act. The activities of the Applicants were clearly in furtherance of the political struggle being waged at the time by the ANC and MK against the South African government. There is no doubt that these activities constitute acts associated with a political objective as envisaged in terms of the Act. We are, moreover, satisfied that the Applicants have made a full disclosure of all relevant and material facts.
In the circumstances amnesty is hereby GRANTED to the Applicants in the following terms:
1. In respect of First Applicant, Ronald Kasrils:
All offences and delicts arising from the operations of the De Lange MK unit (Broederstroom Unit) during or about the period 1986 to 1988 in particular the attack on the communications tower at Linksfield Ridge, Johannesburg during or about November 1987 and the attack on the South African Airforce bus at or near Benoni on or about 1 March 1988.
2. In respect of Second Applicant, Damian Michael De Lange
All of the operations of the De Lange MK unit during or about the period 1986 to 1988 and in particular the following offences of which Applicant was convicted in the Pretoria Regional Court under Case No. 14/288/89, including:
2.1 terrorism in contravention of Section 54(1) of Act 74 of 1982 in respect of receiving military training in exile;
2.2 terrorism in respect of infiltrating and deploying a MK unit inside South Africa;
2.3 terrorism in respect of the equipping, receiving and possession of weapons, ammunition, explosives and accessories;
2.4 terrorism in respect of the explosion at the high voltage mast pole in Kliprivier; 2.5 terrorism in respect of the explosion at the communication mast antennae;
2.6 terrorism in respect of the explosion near the South African Airforce bus;
2.7 terrorism in respect of the placing of a limpet mine under a motor vehicle;
2.8 terrorism in respect of a conspiracy and attempted attacks on Rosebank police station;
2.9 terrorism in respect of conspiracy and the attempted attack on Randburg Commando Headquarters;
2.10 terrorism in respect of reconnaissance, the submission of intelligence reports and communication with the ANC;
2.11 two counts of arson and one count of attempted arson in respect of the offices of the Progressive Federal Party in Johannesburg on or about 31 May 1981.
3. In respect to Third Applicant, Ian Hugh Robertson
All of the operations of the De Lange MK unit during or about the period 1986 to 1988 and in particular the following offences of which Applicant was convicted in the Pretoria Regional Court under Case No. 14/288/89, including:
3.1 terrorism in contravention of Section 54(1) of Act 74 of 1982 in respect of receiving military training in exile;
3.2 terrorism in respect of infiltrating and deploying a MK unit inside South Africa;
3.3 terrorism in respect of the equipping, receiving and possession of weapons, ammunition, explosives and accessories;
3.4 terrorism in respect of the explosion at the high voltage mast pole in Kliprivier;
3.5 terrorism in respect of the explosion at the communication mast antennae;
3.6 terrorism in respect of the explosion near the South African Airforce bus;
3.7 terrorism in respect of the placing of a limpet mine under a motor vehicle.
4. In respect of Fourth Applicant, Susan Catherine De Lange
All of the operations of the De Lange MK unit during or about the period 1986 to 1988 and in particular the following offences of which Applicant was convicted in the Pretoria Regional Court under Case No. 14/288/89, including:
4.1 terrorism in contravention of Section 54(1) of Act 74 of 1982 in respect of receiving military training in exile;
4.2 Terrorism in respect of infiltrating and deploying a MK unit inside South Africa;
4.3 Terrorism in respect of the equipping, receiving and possession of weapons, ammunition, explosives and accessories;
4.4 Terrorism in respect of the explosion at the high voltage mast pole in Kliprivier;
4.5 Terrorism in respect of the explosion at the communication mast antennae; 4.6 Terrorism in respect of a conspiracy and an attempted attack on Randburg Commando Headquarters.
In our opinion the persons who were injured or suffered loss in any of the incidents I respect whereof amnesty is hereby granted, are victims and they are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED AT CAPE TOWN THIS ______DAY OF ______2000.
______
D. POTGIETER, A.J.
______
J. MOTATA, A.J.
______
ADV. N. SANDI
AC/2000/147
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.
PHILA MARTIN DOLO APPLICANT
(AM 3485/96)
DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). Applicant’s amnesty application relates to a number of incidents which have been dealt with on different occasions by the Amnesty Committee. The incident dealt with in this decision is the only outstanding matter. Applicant was granted amnesty in respect of all of the incidents previously finalised.
The present matter deals with the killing of Mrs Zandra Mitchley, her son Shaun Mitchley and the latter’s friend Claire Silberbauer as well as the attempted killing of Mr Norman Mitchley and Shaun Mitchley’s other friend Craig Lamprecht. The incident occurred in the course of the morning on 19 March 1993 at the intersection of Grassmere Road and the Johannesburg/Vereeniging highway, Eikenhof, Gauteng ("the Eikenhof incident"). The car of the Mitchley couple in which they were transporting their son Shaun and his two friends was fired upon by assaillants in a green BMW who pulled up alongside the vehicle at the intersection.
The matter has a long and controversial history which needs to be set out. Pursuant to the incident three members of the African National Congress ("ANC") were arrested. They confessed to the attack whilst in police custody and were eventually convicted in the Transvaal Provincial Division of the then Supreme Court after they unsuccessfully attempted to contest the admissibility of the confessions made by them. The trial Court found that the confessions were freely and voluntarily made and took the contents into account in convincing the accused. Two of the accused were sentenced to death and the remaining accused to long term imprisonment. Given the subsequent turn of events and the merits of the present amnesty application, these death sentences were mercifully never executed. Some time after the abovementioned convictions and sentences, the present applicant submitted an application for amnesty taking responsibility for the Eikenhof incident. This led to the three ANC accused successfully petitioning the Supreme Court of Appeal to re-open their case and to lead further evidence concerning the merits of the Eikenhof incident. We have been informed at the hearing by Mr Mbandazayo, who appeared on behalf of the present Applicant, that the National Director of Public Prosecutions instituted his own investigation into the matter and concluded that there was no basis for continuing with the prosecution of the three ANC accused who were eventually released during or about November 1999.
Given the real prospect of further litigation relating to the matter of the three ANC members, we refrain from commenting extensively on the merits of that matter. It is, moreover, not necessary for present purposes to decide any issue relating to the merits of that matter. We merely point out that in view of our decision on the present application for amnesty, it is clear that the three ANC members were not responsible for committing the Eikenhof attack. This view is reinforced by the facts which emanated from the police investigation as reflected in the voluminous documents and records placed before us. It is now necessary to revert to the merits of the matter at hand. The facts of the matter are largely uncontested and appear from the application as well as the testimony of Applicant as corroborated by Brigadier General R.M. Fihla, a former member of the Apla High Command. Although two victims, Norman Mitchley and Craig Lamprecht, appeared at the hearing, they did not strenuously oppose the application.
Applicant is a seasoned member of the Pan Africanist Congress ("PAC") which he effectively joined in 1984. He left South Africa as a high school student during 1989 and joined the Azanian Peoples Liberation Army ("Apla"), the military wing of the PAC, in exile in the same year. After receiving military training, Applicant was infiltrated into the country. During or about the period January – February 1993, Applicant was deployed as the regional commander of Special Operations in Gauteng by the then Apla Director of Special Operations, Sipho Bulelani Xuma.
On Applicant’s orders, a unit of Apla based in the Eikenhof area, identified a target for attack during March 1993. The objective of the attack was to disrupt the multiparty political negotiations being conducted at the time and thus to advance the position of the PAC and Apla who were strenuously opposed to and were not participating in these negotiations. The initial target was a school bus transporting white scholars. After the target was identified, Applicant reported to and obtained approval for the attack from the Director of Special Operations. Applicant himself participated in the final reconnoitering a few days before the actual attack on 19 March 1993. The unit subsequently reported to Applicant that due to operational circumstances it was impossible to attack the school bus and that they attacked the Mitchley vehicle instead. Both Applicant and Brigadier General Fihla confirmed that the attack was duly reported to the Apla High Command who approved thereof. They indicated that the attack fell clearly within the policy of Apla at the time which made no distinction between what were termed hard or soft targets. The attack in question presumably fell into the latter category. White civilians in particular were legitimate targets for attack as they were regarded as extensions of the apartheid regime.
Applicant confirmed that the attack was the first operation carried out by the Gauteng Special Operations structure and that the operatives were members of an Apla unit under his command. He stated unequivocally that no members of the ANC were involved in the operation and that the members of the relevant Apla unit submitted a written report to him on the attack. It is also common cause that the written report submitted by Applicant to the Apla High Command was eventually confiscated by the South African Police in raids upon the PAC offices in 1995 long before Applicant lodged his amnesty application.
Having carefully considered the matter, we are satisfied that the application complies with all of the requirements of the Act. Applicant has clearly made a full disclosure of all relevant and material facts. We are, moreover, satisfied that the Eikenhof incident constitutes an act associated with a political objective as envisaged in the Act.
In the circumstances, amnesty is hereby GRANTED to the Applicant, in respect of all of the offences and delicts resulting from the Eikenhof incident and in particular:
1. The killing of Zandra Mitchley, her son Shaun Mitchley and the latter’s friend Claire Silberbauer;
2. The attempted killing of Norman Mitchley and Craig Lamprecht.
In our opinion the next-of-kin of the deceased as well as Norman Mitchley and Craig Lamprecht are victims in respect of the incident and they are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED AT CAPE TOWN ON THIS ______DAY OF
______2000.
______
D. POTGIETER, A.J.
______
J. MOTATA, A.J.
______
ADV. N. SANDI
AC/2000/148
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.
LUYANDA HUMPHREY GQOMFA APPLICANT
(AM 0949/96)
DECISION
This is an application for amnesty in terms of section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act") in respect of the following offences committed at or near Ndofela Village and the Mayaputhi – Sterkspruit Bridge on 18 March 1992:
1. The murder of Fanie Smith;
2. The attempted murder of the following persons:-
2.1 Ben Maliehe;
2.2 Deon Martins; and
2.3 Andrew Lategan Franzsen;
3. Malicious injury to property and arson on a Toyota Corolla motor vehicle belonging to Deon Martins and bearing registration letters and numbers OA 35707;
4. The unlawful possession of an unlicensed R5 automatic rifle and ammunition;
5. Intimidation and/or pointing of a firearm at Nkopane Johannes Lesia; and
6. Robbery of an Isuzu Diesel Bakkie, 2200, belonging to Nkopane Johannes Lesia bearing registration letters and numbers CAC 6845.
On the morning of 18 March 1992 and whilst the victims were travelling in a motor vehicle from Zastron to Sterkspruit where they worked, they were shot at by armed gunmen. The victims lived in Zastron and travelled daily to Sterkspruit, where they were running a furniture business. The two towns fell under the jurisdiction of the Republic of South Africa ("RSA") and the then Transkei, respectively. Deon Martins ("Martins") sustained a severe injury on the left hand and his finger was subsequently amputated. (However, he died about three years later when he was involved in a motor vehicle accident). Ben Maliehe ("Maliehe") and Andrew Lategan Franzsen ("Franzsen") were very lucky not to be struck by the bullets that were being fired at them by the attackers as they were fleeing from the scene. Fanie Smith ("Smith") was not so lucky as he was unable to flee when their car’s engine ceased to function, due to gunfire. He was cold-bloodedly shot where he lay next to the vehicle and died as the result of the bullet wounds which he sustained. Initially the general application of Letlapa Mphahlele ("Mphahlele") was also enrolled for simultaneous hearing with the present matter. We deliberately allude to it as a "general" application because he does not specify in respect of what incidents or operations he is seeking amnesty. During the hearing, it became abundantly clear that Mphahlele had no intention of participating in the proceedings or to give viva voce evidence. A notice in terms of section 19(4) had been served on him and there was no question of him being unaware of the hearing in respect of this case. Mr Lungelo Mbandazayo who represented Luyanda Gqomfa ("Gqomfa") made a number of sterling attempts to secure the co- operation and attendance of Mphahlele. All efforts were in vain. In the circumstances, the Committee had no choice but to proceed on the basis that there was only one applicant in the matter, namely Gqomfa.
Before the commencement of the evidence, the Evidence Leader Advocate Paddy Prior advised the panel that the widow of the late Mr Smith had been informed of the date and place of the hearing. Initially her interests in the matter were going to be represented by attorney Mr Wagenaar who subsequently withdrew. We were advised that in the circumstances of the case the Legal Aid Board was unwilling to assist and the victims were represented by Mr Prior. The Committee is most indebted to him for his assistance.
Gqomfa testified that at the relevant time he was a member of the Azanian People’s Liberation Army ("APLA"), the military wing of the Pan Africanist Congress of Azania ("PAC"). He received military training in exile and then returned to the country where he carried out various operations on behalf of APLA. He received orders in respect of all these operations from the High Command of APLA, particularly Mphahlele who at the time was APLA’s Director of Operations and a member of its High Command. In regard to the incident at hand his evidence can be summarised as follows:
At the time of the incident, he was being harboured at a house in Sterkspruit that Mphahlele had secured for him. He does not know who owned the house and he stayed there alone. Whilst he was there Mphahlele and another APLA member one "Ben Wakumzi" (an alias) came to fetch him. They took him to a certain place, also in the Sterkspruit area, where they informed him that they would have to obtain a vehicle to carry out an operation. Also present at this particular meeting was another member of APLA, one "Monde" (an alias). At the meeting, Mphahlele instructed them to attack white travellers along the Mayaputhi – Sterkspruit Bridge. They then went to Ndofela Village where they robbed Nkopane Johannes Lesia ("Lesia") of his Isuzu Diesel Bakkie 2200 motor vehicle, bearing registration letters and numbers CAC 6845.
In a statement made by Lesia to the police, it is reflected that during the afternoon of 18 March 1992 he was on his way from Palmietfontein where he lived to Ditapoleng Village. When he drove past Ndofela Village he saw three black men standing next to a small bridge. They were all armed with firearms. He heard gunshots. It was one of them firing shots to force him stop, which he did. The three men rushed to him and one pointed a firearm at him and ordered him to get out of the vehicle. When he told them that he was on his way to work, they told him that they were freedom fighters and wanted to use his car "for the struggle". The statement further reflects that they gave him an amount of R20.00 so he could travel to work. He reported the incident to the police and later received a report that his vehicle had been found. The statement materially coincides with the evidence of the applicant.
After robbing Lesia of his vehicle Gqomfa and his comrades proceeded to the Mayaputhi – Sterkspruit Bridge. Mphahlele was in charge of the operation. He was armed with a .38 Spanish Revolver and they all took orders from him. The applicant was armed with a R5 automatic rifle, Ben a 9mm pistol and Monde a 7.65mm pistol. Ben had driven the Isuzu Bakkie. The vehicle was to be used as the "get away" vehicle. Mphahlele was to initiate the attack by shooting first and the others were to follow suit. He was standing on the left hand side of the applicant, about 100 metres away from him. Monde was on the right hand side of the applicant and Ben on the far right with the vehicle, ready to whisk them away as soon as the operation had been carried out.
When Smith and the other victims approached the Mayaputhi – Sterkspruit Bridge, Mphahlele opened fire, and the rest also fired. The vehicle immediately stopped and Martins, Maliehe and Franzsen frantically alighted and ran away. Smith who had sustained injuries was unable to flee. As he was lying on the ground next to the vehicle Monde pointed the pistol at him and Mphahlele gave an order that Smith be shot. Gqomfa then shot Smith. However, he said that he regrets shooting the deceased, but indicated that had no choice as he was carrying out orders. After the operation, they set the Toyota Corolla motor vehicle alight in order to prevent their being traced. They then drove away and abandoned the Isuzu vehicle about 2 to 3 km away from the scene, leaving the keys in the ignition.
It is clear that the applicant was a member of the PAC and APLA and that he acted in terms of these organisations’ policies and objectives. At the relevant time APLA was still engaged in the armed struggle and regarded all whites as supporters of the Apartheid Government. Attacks of this nature were aimed at impressing on whites the need to abandon their support for the Government of the time and to make it clear that they would continue to be targets of such attacks unless there was political change in the country. The applicant acted under the orders of Mphahlele. It is also clear that the offences and acts applied for are acts associated with a political objective and that the applicant has made full disclosure of all relevant facts.
In the result amnesty is GRANTED for the offences set out on pages one and two above.
We are of the opinion that the following persons who were killed or injured are victims and they are accordingly referred to the Reparation and Rehabilitation Committee in terms of Section 22(1) of the Act.
1. The relatives and/or dependents of Fanie Smith;
2. Ben Maliehe; and
3. Andrew Lategan Franzsen.
SIGNED AT CAPE TOWN ON THIS______DAY OF ______2000.
______
JUDGE A. WILSON
______
ADV. N.J. SANDI
______
MR ILAN LAX
AC/2000/149
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.
KABELO NIMROD MATLALETSA 1ST APPLICANT
(AM 5096/97)
W.N. DLAMINI 2ND APPLICANT
(AM 5288/97)
KEITH MATILA MOKOAPE 3RD APPLICANT
(AM 5513/97)
OUPA SHADRACK KHUMALO 4TH APPLICANT
(AM 6302/97)
ITUMELENG TSIMANE 5TH APPLICANT
(AM 6305/97)
LULAMILE LENNOX MAGAJANA 6TH APPLICANT
(AM 7399/97)
RALPH PETERSEN 7TH APPLICANT
(AM 7508/97)
HAROLD TEBOGO KHOABANE 8TH APPLICANT
(AM 8065/97)
BAZIL MKULU MAVUSO 9TH APPLICANT
(AM 6319/97)
SAUL MANDLENKOSI MANDLAZI 10TH APPLICANT
(AM 5095/97) THABO JOHN SPHAMBO 11TH APPLICANT
(AM 5097/97)
MZWANDILE LEON NDABA 12TH APPLICANT
(AM 5100/97)
CHARLES MARTIN MOTLALENLOA LIETA 13TH APPLICANT
(AM 5295/97)
SAMUEL MATHESI MANGENA 14TH APPLICANT
(AM 5275/97)
MZWANDILE ALPHEUS DAMOYI 15TH APPLICANT
(AM 6303/97)
MORUTI EDMUND NOOSI 16TH APPLICANT
(AM 6304/97)
DECISION
The above sixteen applicants unless otherwise indicated, relate to offences and delicts committed in ANC camps in Angola or Zambia. Before dealing with the evidence relating to the specific offences, the Committee deemed it necessary to deal with the background leading to the establishment of these camps. This had been dealt with by various commissions during the past two decades, including the Truth and Reconciliation Commission. The Committee will briefly refer to the conclusions drawn by these commissions and to aspects of the evidence given before them that might be relevant.
These reports appeared as appendices to the ANC’s Policy Statement to the Truth and Reconciliation Commission in what has become known as the August 1996 submission.
The TRC concluded as follows in Volume 2 Page 366 of its report:-
On the basis of the evidence available to it, the Commission finds that the ANC, particularly its military structures which were responsible for the treatment and welfare of those in its camps, were guilty of gross violations of human rights in certain circumstances and against two categories of individuals – suspected "enemy agents" and mutineers.
The Commission finds that "suspected agents" were routinely subjected to torture and other forms of severe ill- treatment and that there were cases where such individuals were charged and convicted by tribunals without proper attention to due process being afforded them, sentenced to death and executed. The Commission finds that these were acts in which the individuals so affected had their human rights grossly violated. Likewise, the Commission finds that the failure to communicate properly with the families of such victims constituted callous and insensitive conduct.
The Commission also finds that all mutineers who were executed after conviction by military tribunal, irrespective of whether they were afforded proper legal representation and adequate due process, suffered gross violation of their human rights.
With regard to allegations of torture, the Commission finds that, although it was not ANC Policy to use torture, the security department of the ANC routinely used torture to extract information and confessions from those being held in camps, particularly in the period 1979-89. The Commission has taken note of the various forms of torture detailed in the Motsuenyane Commission and finds that they amounted to the deliberate infliction of pain and/or severe ill-treatment in the form of detention in solitary confinement and/or the deliberate withholding of food and water and/or medical care and, as such, amounted to the perpetration of gross violations of human rights.
The Commission finds further that adequate steps were not taken in good time against those responsible for such violations.
In dealing with the present applications the Committee had to take cognisance of the fact that the applicants, according to the ANC’s own submission and the evidence given by General Masondo before a hearing in terms of Section 29 of Act 34 of 1995, acted against ANC policy in torturing the victims.
General Masondo was since 1977 a member of the National Executive Committee of the ANC, the National Political Commissar, a member of the Revolutionary Council and at a stage acted as Deputy Commander of the Liberation Forces and was also a member of the Central Committee of the Communist Party. He testified about the detention camp known as Quattro and the mutiny which took place during the early 1980’s. The camp became necessary because the security forces of the South African government managed to infiltrate the ranks of the ANC on a large scale. People suspected of being infiltrators had to be detained. During that period mutineers rebelled against the established authority of the local ANC commanders, blaming them for not enhancing a more offensive war against the security forces. A further category of soldiers who were detained were those who were undermining discipline by smoking dagga, womanising or were guilty of committing other crimes like stealing or exchanging goods for dagga or drugs. They had to be disciplined in order to maintain military order. Only one of the categories mentioned above, namely people being suspected of being infiltrators actually working and collaborating with the enemy could be regarded as enemies. The other categories were people supporting the ANC, loyal members, and acting against them and torturing them couldn’t be regarded as acts or omissions directed against the enemy but were in fact acts perpetrated against fellow party members.
General Masondo further testified that it was against the policy of the ANC to torture people to obtain confessions. Yet, he conceded that it did happen and that in some instances people were starved and ultimately even executed without bringing them before a tribunal. This was according to his evidence never approved of by the ANC but they recognised that a method of third degree was used in order to obtain confessions.
It is against this background that the Committee has to deal with the present applications. Serious consideration had to be given to the fact that the applicants acted against the policy of their own political movement and in many cases acted against their own loyal party members who committed crimes like smoking dagga or simply ignored party rules.
The Committee is satisfied that the act in setting out criteria or guidelines to assist the Committee in deciding whether an act or offence is associated with a political objective does not lay down that it should be in accordance with party policy. It has previously been pointed out that it was denied that it was the policy of, for instance the IFP or NP, to kill political opponents. It was, however, accepted that killings did take place, that they were politically motivated and in some instances in the security forces, that action was taken against co-members of the forces being suspected of assisting the political opposition in the struggle or being informers or double agents. The same was experienced during the 1980’s when informers and people suspected of collaborating with the security forces were necklaced.
As far as military forces are concerned it was always accepted that they had to maintain strict discipline in order to operate successfully. The Committee accepts that if the objective was to discipline members of an organisation in order to build an effective military organisation to fight the political struggle, offences associated with that objective would fall within the definition of acts, omissions or offences associated with a political objective.
The Committee will now, against this background, deal with the different applications. The following applications were not proceeded with and were formally withdrawn by the applicants:
1. Kabelo Nimrod Matlaletsa - AM 5096/97
2. W.N. Dlamini - AM 5288/97
3. Keith Matila Mokoape - AM 5513/97
4. Oupa Shadrack Khumalo - AM 6302/97
5. Itumeleng Tsimane - AM 6305/97
6. Lulamile Lennox Magajana - AM 7399/97
7. Ralph Peterson - AM 7508/97
8. Harold Tebogo Khoabane - AM 8065/97
9. Bazil Mkulu Mavuso - AM 6319/97
The Committee heard evidence in the applications that are dealt with below:-
10. DECISION IN THE APPLICATION OF SAUL
MANDLENKOSI MANDLAZI – AM 5095/97
This applicant testified that he was a member of the ANC and that he took part in the interrogation of Sizwe Mabaso as a recording officer. The latter was suspected of collaborating with the security police and supplying information to them which lead to the arrest and detention of Thandi Modise. Mabaso was brought to the safe house in Maputo which served as head quarters of the ANC. The applicant was ordered by his superior, Dan Mohapi, alias Stalin, to assist with the interrogation of Mabaso. They tied him up during the interrogation and continuously hit him so that he would confess to his role in the arrest of Thandi Modise. He was recruited by Thandi Modise to her Unit and was suspected of causing her arrest. During interrogation he contradicted himself and that caused the assault on him.
The Committee is satisfied that the applicant made a full disclosure of the relevant facts and that the offence was associated with a political objective. The applicant conceded that they acted on mere suspicion and that it wasn’t proved that Mabaso was in fact collaborating with the South African Security Forces.
The Committee concluded as follows:-
Amnesty is GRANTED to the applicant in respect of the assault on Sizwe Mabaso during interrogation at the head quarters of the ANC in Maputo during 1982.
In terms of Section 22 of Act 34 of 1995 Sizwe Mabaso is considered to be a victim and is referred to the Committee on Reparation and Rehabilitation.
11. DECISION: APPLICATION OF THABO JOHN SPHAMBO
AM 5097/97
The applicant applies for amnesty in respect of any offence which led to the death or contributed to the death of Eric Pharatsi in the Kibashi Camp (Camp 13) in Angola.
The applicant testified that he was the Recording Officer and Acting Chief of Staff in the Camp. The command structure of the camp comprised of Livingstone Gaza, the commander, the applicant, Edwin Mabitse, a commissioner and one Victor who was the chief logistic officer. They received information that Eric Pharatsi was stealing camp property and was exchanging it for dagga which he brought back and distributed in the camp. The smoking of dagga was prohibited in the camp. They considered the matter and found Eric Pharatsi guilty and ordered that he should be kept in solitary confinement.
The applicant further testified that he received a report on the following day that Pharatsi died in the underground cell of suffocation because, unknown to him, he suffered from asthma.
The deceased’s mother and sisters opposed the application. One of the sisters known as Belinda testified that she was in Angola in August 1981 when her brother died. At the time she was in the transit camp in Luanda and was informed of his death four days after he had been buried. She was informed by General Masondo that he died of shock. She denied that he suffered from asthma but admitted that she and one of her sisters were asthmatic.
She further complained that she was not shown his grave notwithstanding promises by General Masondo and Commander Ngwane that she would be taken to his grave.
There is no evidence to contradict applicant’s version. It is not clear what offence applicant actually committed. Although there was no law authorising him to detain a person, it is accepted that he acted in accordance with the rules and regulations of the ANC. It seems however clear that the victim died because he was detained in an underground cell which was not suitable for detention of a person who might have breathing problems. It may be that the applicant after full and proper investigation may be found guilty of at least culpable homicide. A refusal of amnesty on the grounds that it is not clear whether the death of the victim was caused by the negligence of the applicant could cause irreparable harm to the applicant if a court of law (which wouldn’t be bound by a finding of the committee that no offence was committed) would find that he was indeed guilty of an offence.
The Committee is satisfied that he made a full disclosure of his involvement in the punishment of the deceased.
In the result amnesty is GRANTED to the applicant in respect of any offence or delict flowing from the detention of Eric Pharatsi in an underground cell in Camp 13, Kibashe, Angola and his death during such detention.
The mother of the deceased Mrs. I.N. Pharatsi (011-936 8057) is referred to the Committee on Reparation and Rehabilitation in terms of Section 22 of Act 34 of 1995.
DECISIONS IN THE APPLICATIONS OF MZWANDILE LEON NDABA AM 5100/97 AND CHARLES MARTIN MOTLALENTOU LIETA AM 5295/97
Apart from the application forms completed by the applicants, the Committee was also furnished with extracts from the Motsuenyane report dealing with the assault on Bhekinhlanhla Goodluck Mpungose. Mr Mpungose also attended the hearing and testified before the Committee and he also confirmed the contents of an affidavit previously filed.
At the outset applicant Ndaba stated that in so far as his application might have indicated that he acted with the explicit approval of Mr Jacob Zuma and Mr Joe Nhlanhla that wasn’t the position. He assumed that they would have approved of some degree of force being used in order to obtain a confession from the victim. The applicant was not aware whether a report was submitted to them and if so, what their reaction had been. They, however, didn’t act on their orders.
Both applicants were members of the counter intelligence unit of the ANC, stationed at (Hammersdale), Lusaka. Their Unit consisted of Tim Williams who was in command, a person known as Bonny M. and the two applicants.
Williams instructed them to arrest the applicant after he had been lured to Zimbabwe and thereafter to Zambia by one Bafana Duma. After arresting him they took him to a house in Hammersdale where they searched him and started debriefing him.
They testified that they found a note with the registration number of Mr Joe Nhlanhla’s car as well as an IFP membership card on him. The victim, Mr Mpungose admitted that he had an IFP membership card and an empty container which previously contained polish for Mr Nhlanhla’s car. He said that he obtained the container in Lusaka at the ANC’s offices after it had been used and thrown away. As far as the IFP membership card was concerned, he explained that during that period hostility between the IFP and ANC was rife in KwaZulu Natal and each party had its strongholds which were prohibited areas for opposition members. It was a well known (and approved) method for ANC members to obtain IFP membership cards to enable them to enter IFP areas. This explanation wasn’t accepted by the applicants and they maintained that he was a spy and that the membership card was proof thereof. The applicants conceded in evidence before the Committee that at the time of the interrogation they were not aware of the fact that ANC members used IFP membership cards to gain entrance into IFP strongholds. They only became aware of this on their return to the RSA during the nineties.
It was further common cause that Mpungose was a former policeman who retired from the police force in 1979 and thereafter became a herbalist. His previous commander was a certain Captain Botha and according to the applicants they received information that Mpungose gave information to Botha which led to the arrest of four ANC cadres. Mpungose denied that he gave any information to Botha and that any member of the ANC who was known to him at the time, was in fact arrested.
The applicants further testified that they took part in the interrogation and debriefing of Mpungose. They said he confessed that he was an agent of the enemy but would then again retract his confession. As a result thereof they assaulted him, inter alia by beating the soles of his feet. They on one occasion took him to the Congela Farm where they interrogated and assaulted him from about 7.00 in the evening till 4.00 in the morning. He then confessed that he was an enemy agent and Williams reported that to the leadership. The leadership then decided that he should be transferred to Angola for further detention. He was taken to Angola by applicant Ndaba who was also known as Spinks and according to him he was again assaulted and humiliated by Ndaba in Angola. He ultimately landed in Camp 32, also known as Quadro, where he was detained for 3 years and 7 months without being given the opportunity to appear before a tribunal. As previously stated this incident was investigated by the Motsuenyane Commission who found that Ndaba who was also known as Floyd Huna or Spinks used excessive force on Mpongose in Lusaka as well as in Luanda.
Applicant Lieta stated before the Committee that the Motsuenyane Commission wrongly used the name Piliso in its report. They should have referred to him as the person who used excessive force in Lusaka. The Committee doesn’t find it necessary to refer in more detail to the Motsuenyane report. The Commission dealt fully with this incident on pages 94 to 99 of its report and in its conclusion implicated various other people as far as assaults on Mpungose is concerned. The Commission further dealt with the evidence of Ndaba (Floyd Huna) on page 132 and Tim Williams on page 149.
Mpungose testified about the various assaults, stating that apart from being beaten up, he was hung upside down from a tree, burnt with a candle underneath his feet and showed various marks indicative of assaults on his body. He further stated that although the applicants did not make a full disclosure about the manner in which they assaulted him, he does not wish to oppose their applications for amnesty.
In the result amnesty is GRANTED to both applicants in respect of the following offences:
A
1. The kidnapping of Bhekinhlanhla Goodluck Mpungose on or about 20 May 1987 at Lusaka.
2. The assaults with intention to do grievous bodily harm on the said Mpungose at Lusaka and on Congela Farm on various occasions during the period 20 May 1987 to 15 July 1987.
B. Amnesty is also GRANTED to Ndaba in respect of assaults on the said Mpungose at Luanda during the latter half of 1987.
It is recommended that Bhekinhlanhla Goodluck Mpungose should be considered to be a victim in terms of Section 22 of Act 34 of 1995.
14. DECISION IN THE APPLICATION OF SAMUEL WATHEDI MANGENA AM 5275/97
During 1984 some of the ANC cadres had been accused of mutiny against the ANC command. They were arrested and imprisoned in Luanda. They went on a hunger-strike and the Angolans requested the ANC to remove them from the Angolan prison. It was decided to take them to Camp 32 (also known as Quadro) Edward Dlamini was one of the leaders of the mutineers. During the transportation a scuffle broke out between him and the ANC soldiers overseeing the prisoners. The applicant, who was one of the MK soldiers responsible for transporting the prisoners, forcefully subdued Dlamini. The applicant seeks amnesty for this assault.
The Committee is satisfied that the applicant met the requirements of Act 34 of 1995 and amnesty is GRANTED to the applicant in respect of the assault on Edward Dlamini during 1984 on the road from Luanda to Camp 32.
15. DECISION IN THE APPLICATION OF MZWANDILE
ALPHEUS DAMOYI AM 6303/97
The applicant was the camp commander at camp 32 in Angola. He seeks amnesty because he feels responsible for the death of two inmates, Zaba Maledza and Edward Masuku, who died during detention. It was suspected that Maledza committed suicide because the electric bulb in his cell was missing and that Masuku died because of a lack of blood. His palms and feet were very pale.
The applicant testified that he felt responsible for their deaths because he, as camp commander, failed to built bigger and better cells for the detention of inmates. In his application he stated, "some of the inmates whose names I have forgotten died because of congestion, some because of the dampness of the floor where they were kept."
On the evidence it is not clear whether the applicant is indeed guilty of committing an offence. He, however, accepted responsibility for the deaths of the inmates who died while in detention under his command. It may be that his negligence contributed to their ill-health and death.
Amnesty is GRANTED to the applicant in respect of any offence or delict committed by him while he was the camp commander of Camp 32 and which contributed to the deaths of Zaba Maledza and Edward Masuku during 1983 to 1985.
16. DECISION IN THE APPLICATION OF MORUTI EDMUND NOOSI AM 6304/97
The applicant was a member of the ANC, serving in the Security Unit as a Recording Officer. He seeks amnesty for firing a shot at Khotso Morena also known as Mwenzi Twala, in an attempt to kill him and for the assault on Ben Masero.
He testified that there was mutiny in several ANC camps during 1984. He was one of the ANC soldiers who were sent to disarm the mutineers. While they were in the process of disarming and arresting them Twala started to run towards the tent of the leadership where arms were kept. He ignored shouts to halt and the applicant fired a shot at him and wounded him. His objective was to protect the ANC leadership who in the tent namely Chris Hani, Joe Modise and Lambert Moloi. The offence was associated with the political objective of protecting the ANC leadership.
He also applies for amnesty in respect of an assault on Ben Maseko (real name Don Sipho Mashela). According to him he had to discipline Maseko who was detained because they considered him to be a security risk. The applicant also conceded in cross examination by the legal representative of Maseko that he interrogated him but denied that he ever hit him with a pistol butt. The victim, Maseko, showed a scar on his nose, complained about an injury causing bad eye sight and indicated various scars on his body, testifying that they were the result of assaults. He further testified that his real name is Don Sipho Mashela and that he was assaulted by the applicant on various occasions. The applicant only applied for one incident of assault.
We have dealt with the background to the camp detentions and the fact that assaults were contrary to ANC policy, rules and regulations. It was however a fact that assaults did occur and that a blind eye was turned on force being used to obtain confessions. The applicant only applied for one incident of assault. After considering the evidence the Committee is satisfied that the application fall within the ambit of Act 34 of 1995.
Amnesty is GRANTED to the applicant in respect of an assault on Don Sipho Mashela alias Ben Maseko in Camp 32 in Angola during or about September 1981, at or near the medical depot.
It is recommended that Don Sipho Mashela be declared to be a victim in terms of Act 34 of 1995.
SIGNED AT CAPE TOWN ON THIS THE ______DAY OF ______2000.
______
JUDGE A. WILSON
______
C. DE JAGER (AJ)
______
MR J B SIBANYONI AC/2000/150
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.
JOSEPH KOETLE APPLICANT
(AM 7500/97)
DECISION
This is one of a number of amnesty applications for amnesty by Joseph Koetle who is presently employed as an Executive Officer of the Gauteng City Council. He has already been granted amnesty for his involvement in a number of other operations on behalf of Mkhonto WeSizwe ("MK"), the military wing of the African National Congress ("ANC"). At the relevant time he was a highly placed MK operative and commander of units inside the country. He also worked closely with Lieutenant-General Siphiwe Nyanda, a former MK member and presently the Chief of the South African National Defence Force. We again wish to mention that Mr Nyanda has already taken responsibility for the acts carried out by the applicant and other MK operatives. Nyanda was one of the highly ranking figures in the leadership of MK and had many operatives working under him both inside and outside the country before the ANC suspended its armed struggle.
The applicant is seeking amnesty for his involvement in the following incidents:-
1. SABOTAGE ON THE RAILWAY LINE BETWEEN MZIMHLOPHE AND PHOMOLENG STATIONS IN 1987
In this incident he supplied one Joas "Jomo" Chomane with a 158 Limpet mine which was used in the operation. Jomo acted under the orders of the applicant when he personally placed a bomb on the railway line. No person was injured as the result of the explosion which caused a damage of R2 000.00. The applicant accordingly takes full responsibility for the operation and the consequent damage.
2. THE MURDER OF CONSTABLE P.T. MAKHALEMELE
AT ROCKVILLE, SOWETO IN OCTOBER 1987
On the day in question the applicant was arrested at Hillbrow, Johannesburg, by the deceased and his colleague. At the relevant time the applicant had been infiltrated into the country by MK High Command where he planned and/or took part in a number of operations. The police were demanding to be told where the arms were located and the applicant agreed to take them to a hideout at Rockville, Soweto. He was unarmed at that stage and his plan was to attack his arrestors once he had access to a firearm at the hideout. He was then escorted to Rockville. On arrival there he took the police by surprise and swiftly drew out a firearm which he had hidden. He shot the deceased and the other policeman ran away. The applicant later returned to Swaziland with a hijacked vehicle. We shall revert to his evidence regarding the vehicle later. 3. ROBBERY OF A MOTOR VEHICLE AT HOUSE NO. 2772,
ROCKVILLE, SOWETO, 1987
After killing Constable Makhalamele the applicant had to lie low in hiding. He was unable to enlist the help of his fellow MK compatriots who were also inside the country at the time. He needed a vehicle to facilitate his escape to Swaziland. In the evening of the day in question he proceeded to house No. 2772 where he "requested" keys for a vehicle which was parked outside. He told the owner and occupants of the said house that he needed the vehicle to escape and that he was an MK soldier. He further told him to remove all valuables in the car. He traveled with the vehicle towards the R.S.A.-Swaziland borders where he abandoned it.
4. ESCAPING FROM MOROKA POLICE STATION IN AUGUST 1987 AND NOVEMBER 1993
In both occasions no force was used and in the first instance, he had been arrested for possession of a stolen vehicle which had been used in an MK operation. In 1990, due to the delay, in processing MK application for indemnity in terms of the former Indemnity Act, 1990, the applicant and other MK cadres panicked and escape from prison.
5. UNLAWFUL POSSESSION OF A 9MM PISTOL AND A
158 MINI LIMPET MINE AT SOWETO IN 1987
CONCLUSION
After considering the matters we are satisfied that the applicant has complied with all the requirements of the Act. The crimes committed are obviously acts associated with a political objective in terms of the Act. It is clear that he carried out the acts as a member of the ANC and on its behalf. He further appears to have given a full disclosure of the relevant facts. He is therefore ENTITLED TO AMNESTY.
The dependants of Makhalemele are hereby referred to the Rehabilitation and Reparations Committee to be declared victims in terms of the Act.
SIGNED AT CAPE TOWN ON THIS THE ______DAY OF ______2000.
______
JUDGE S. MILLER
______
ACTING JUDGE J MOTATA
______
ADV. N. SANDI
AC/2000/151
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.
JOHAN MARTIN VAN ZYL 1ST APPLICANT
(AM 5637/97)
DONALD SPENCE GOLD 2ND APPLICANT
(AM 3686/96)
SCHALK JAN VISSER 3RD APPLICANT
(AM 5000/97)
GERHARDUS STEPHANUS SCHOON 4TH APPLICANT
(AM 5006/97)
DISRE CARR 5TH APPLICANT
(AM 5008/97)
DECISION
The applicants applied for amnesty in respect of the killing of a person who at the time of his death was not clearly identified. The death occurred on the farm Leeuspoor near the Josini (or Pongolapoort dam) during the 1980.
Johan van Zyl ("van Zyl") testified that at the time of the incident he was a Lieutenant and the branch commander of the South African Police’s ("SAP") security branch ("SB") at Ladysmith. He received a telephone call from the then Colonel S.J. Visser ("Visser") who at that stage was the branch commander of the SB at Soweto, requesting him to come to Johannesburg for a sensitive operation. He met Visser at his house who told him that he had instructions to eliminate a black man who was a trained MK member but who had become a turncoat and acted as an informer to the SB in Soweto.
According to Visser the Soweto SB had obtained information that this man was acting as a double agent and was indeed giving information to the ANC. Visser indicated to him that this instruction had come from his superiors at Head Office in Pretoria. It later transpired that the instruction came from Brigadier Piet Goosen who at the time was the SAP’s head of intelligence. Van Zyl, after discussion, suggested that the elimination could be carried out in an area which he regarded as isolated and thus safe for such an operation and where the body could be destroyed by explosives. Van Zyl thereafter called Sergeant D.S. Gold ("Gold"), a member of the SB in Pietermaritzburg, who was an explosives expert. He instructed him to meet him the next morning near Pongola and to bring explosives with him.
Van Zyl and Visser thereupon went to fetch the deceased at Klerkskraal between Ventersdorp and Klerksdorp where he was being detained. Van Zyl couldn’t remember whether the deceased was picked up at a private house or at a police station. The deceased wasn’t handcuffed and appeared to be at ease. The relationship appeared to be one of a handler and agent. It was around sunset and they drove through the night to Pongola where they arrived round about 4.00 in the morning and met Gold. From there they travelled to the Josini SB where they met Warrant Officer G.S. Schoon ("Schoon").
Van Zyl testified that he had contacted Schoon earlier but couldn’t remember whether it was the previous day or earlier that morning. They discussed the elimination of the deceased with Schoon and it was agreed that the corpse would be taken by boat to an island in the Josini dam where it would be destroyed by the use of explosives. Schoon went to fetch a boat, while van Zyl, Gold and the deceased proceeded to a empty farm house on the farm Leeuspoor which the security police used to use during their border operations in Northern KwaZulu Natal. Warrant Officer D.S. Carr ("Carr"), commander of the SB at Mbazwana, to the south of Josini had in the meantime been summoned by Schoon to meet van Zyl and Gold at the farm house on Leeuspoor. Visser waited close to the dam for Schoon to return with the boat.
At the farm house van Zyl handed a hand machine carbine to Carr who kneeled near the deceased who at that time was lying under a tree in front of the house apparently asleep. He shot at the deceased but apparently missed and the deceased jumped up and charged in van Zyl’s direction. Van Zyl, thereupon shot him with his service pistol. He can’t remember whether he fired once or twice but the deceased fell and it transpired that he was fatally shot in the head. Gold had walked to his car immediately before the shooting and didn’t witness the actual shooting.
Van Zyl further testified that they then wrapped the corpse in a tarpaulin and put it into the back of Carr’s landrover. Carr drove it down to the dam about 200 – 300 meters from the house where Visser and Schoon were waiting with the boat. Before leaving the scene, Van Zyl and Gold, covered the blood stains with sand and then joined the others at the boat. The corpse was loaded into the boat and taken to an island in the middle of the dam. Van Zyl and Gold put explosives onto the body and Gold detonated it. The explosion destroyed the body. Van Zyl thought there might have been a second smaller explosion to dispose of small remnants but he wasn’t sure. Gold testified that there was only one explosion.
Van Zyl further testified that at that stage during the political conflict he considered it a warranted and necessary operation to protect the interests of the state and the identity of people working with the security forces. He had no other motive than the political considerations mentioned, and confirmed that he acted under orders.
The applicant further stated under cross-examination that the deceased and he himself were very tired after travelling through the night, that the deceased might have fallen asleep but denied that he had been drugged. He further testified that Visser informed him that the deceased was known as Scorpio. He didn’t know the name or identity of the deceased. The objective of disposing of the body was to cover up a politically motivated crime.
Van Zyl concluded his evidence by saying: "But in hindsight it is easy to be clever now. Mr Chairman, saying it, with respect from my side. At that time this was the position that stared us in the face and that is the way we reasoned at that time. I’m not trying to justify this action. I’ve never tried to justify our actions. I’m just trying to explain what the conditions were and how we thought and how our minds worked at that time. They might have been totally wrong, and in hindsight, they have been wrong. And those are the facts".
Schoon confirmed the evidence of van Zyl as far as it referred to him. He added that after discussing the matter he suggested that they should dispose of the body on the island. He further testified that he gave evidence in a hearing under section 29 of Act 34 of 1995 where the name Scorpio was used and that in preparing his application he was advised by his legal representative that the deceased could probably be MK Scorpio. He cannot remember whether he had heard the name before and cannot even remember whether he in fact saw the deceased before was killed. Soon after meeting Visser and van Zyl he was requested to go and fetch the boat to be used for the disposal of the body. That was after he suggested to them that the body should be taken to the island and mentioned that he had a boat which could be used. He further testified that he can’t say whether the person killed was Mr Oupa Ronald Madondo, Scorpio or whoever because he didn’t know him or Madondo at all.
Gold withdrew his application for amnesty insofar as it related to the attempted kidnapping of an ANC operative in Swaziland on the Maputo/Manzini road between 1979 and 1982 and the illegal crossing of the RSA/Swaziland border during the period mentioned. These incidents were referred to in paragraphs 4.3 and 4.4 of the affidavit annexed to his amnesty application.
He testified that as a security policeman he was operating against the ANC and its communist influence and felt that it was the right thing to do. He never knew the identity of the deceased and cannot say whether it was Mr Madondo or not. His recollection is that the incident took place on 1 April 1980. He confirmed van Zyl’s evidence except that his recollection is that they met at Mbazwana. He conceded that in retrospect and after hearing his co-applicants, this seems illogical. He recalled that he had been told that the deceased was a SB agent who had sold out and had become an ANC member or something along those lines. He further testified that the deceased appeared to be sedated because when he first saw him he was sleeping and he was asleep most of the time. There are however no material differences between his version and those of the other applicants. He confirmed that his motivation was purely political.
Visser testified and confirmed that during 1980 he was divisional commander of the SB at Soweto. He referred to the volatile political situation in the country at that time. He testified about an MK member known as Scorpio who had been arrested in the Western Transvaal while coming from Angola. This person became an agent of the SB after detention in terms of the then security laws. His handler was Martin van Rooyen, then a member of the SB at Soweto.
In the beginning he supplied valuable information. Van Rooyen later became suspicious and after monitoring him, established that he was a double agent. Visser further testified that the only name he remembered this person by was Scorpio. Because he considered him to be dangerous, he detained him at Klerkskraal police station and immediately reported to Brigadier Goosen, furnishing him with all the available information. Goosen also considered him to be dangerous because as an agent he would be aware of the movements of members of the security police and if is knowledge was transferred to the ANC it could have endangered the lives of those members and jeopardise the whole intelligence system that had been built. It also transpired that he had knowledge of an intended attack on a liberation movement camp in Angola and that the Cubans had been warned to evacuate the camp because of the imminent attack. After considering the matter Goosen instructed Visser to eliminate the deceased. He further stated that upon fetching Scorpio from Klerkskraal he told him that the problems concerning him had been cleared up but that he wouldn’t be used in Soweto anymore but on another front.
His further evidence is in accordance with what van Zyl testified to. He confirmed that the motive behind the killing was purely political and considered the operation to be in the interests of the State and the SB as representatives of the State.
Visser was convinced that Scorpio was not the person known as Oupa Madondo because the latter, from reports he had read, was not a trained MK soldier from Angola but an activist involved in the Black Power Movement. It was put to him that according to some of the documents annexed and used in the Section 29 hearing there might have been another person known as Oupa Ronald Madondo who was a trained MK soldier and he conceded that that might have been the position. The latter person disappeared according to the family in 1979 and was never seen again.
Disre Carr, at the time of the hearing, was in hospital and could not give oral evidence. By agreement between all interested parties he later filed an affidavit. All interested parties received copies of the affidavit and agreed that seeing that this version corresponds with what the others have already testified to in the public hearing it would not be necessary to incur the costs of a further hearing.
Ms Thokozile Mavis Madondo gave evidence and stated that she was the sister of Oupa Ronald Madondo. She identified him as being the person whose photographs appear on pages 99, 140 and 141 of the bundle of documents which included the applications. It must be mentioned that none of the applicants were able to confirm or deny that these photographs were photographs of the person they killed 20 years ago. She testified that her brother was, according to a report they received on making enquiries at the Protea Police Station in Soweto arrested on the Potchefstroom/Roodepoort Road during 1979. She was told that they found his car abandoned on the Potchefstroom Road and that he had run from the car towards Kliptown and that the police were not able to arrest him. She never saw him again but after hearing the evidence she is convinced that it was her brother that had been killed. She further stated that a person known to be van Rooyen of the SB used to visit their house and to harass them. In this regard it must be borne in mind that Visser testified that the members of his staff in Soweto were not aware of the fact that he and the applicants killed the person known to him as Scorpio. Although it might be speculation it therefore would not have been improbable that van Rooyen as handler would have made enquiries at his agent’s home and family as to whether they have seen him or not.
The Committee considered all the evidence and the submissions made on behalf of the applicants and the family of Oupa Ronald Madondo. On the evidence before us we cannot conclude that the person referred to as Scorpio who was killed and whose corpse had been destroyed was in fact the same Oupa Ronald Madondo whose family appeared before us. On the other hand it can also not be concluded that it was not the same person. This fact, however, does not alter the fact that on the evidence before us a person was murdered and his corpse thereafter destroyed.
In view of the conclusion arrived at, the Committee does not find it necessary to deal with any contradictions between statements made by Ms Madondo and her oral evidence before us. The Committee is fully aware of the fact that all the parties who testified at the hearing had to deal with facts relating to an incident which happened 20 years ago.
The Committee is satisfied that all the applications are formally in order as required in terms of Section 20(1)(a) of Act 34 of 1995, and that all the applicants had to the best of their ability made full disclosure of all the relevant facts.
The Committee often in hearing of this nature has to struggle with the question as to why people committed such horrendous acts as testified to in this instance. It may be appropriate to make reference to their own explanations. Gold, at the end of his evidence, requested to say a few words to the family of Madondo who, as pointed out, might have been the person killed. He proceeded:
"I must say that I don’t want to bore you with long speeches about why we did what we did or why I was doing the work I was doing, but over a long time we were conditioned to the stage where we could actually do things like this, perhaps.
You must remember that from a very, very early age I was exposed to the violence that was happening in the country. I can remember at the age of eight, looking out of my bedroom window in Scottsville, Pietermaritzburg and seeing the community hall of Sobantu Village burning during unrest and that was the first indication to me that we had a problem here.
And then throughout the years for instance, the propaganda that we were exposed to, but no propaganda could ever teach me that black people were bad, or no propaganda could teach me not to respect and love the nursemaid I had who first taught me Zulu or uBantu or whatever you’d like to call it. I realised there was something seriously wrong, but the savage nature of the symptoms of the Nationalist Government, the savage nature of the symptoms, there were so many of them. I can recall things like the Bashe Bridge murders, I can recall things like the Langa riots, I can recall the Cato Manor riots, I can recall the nun, Dr Mary Quinlan who was killed during township unrests and the mob eating her body which they cooked on her burning car. Stuff like that left a lasting impression on me and I wanted to fight this. I realised that black people weren’t being treated right, but nothing could condone the savagery of those symptoms.
Anyway, to cut it short, if the deceased is who we think he is, then we were fighting on opposing sides, we were fighting a war that was caused by ideologies and fanned by politicians. I think I was about four months old when the Nationalist Government came to power, I had nothing to do with the formulation of their policies, but I had a lot to do with the symptoms of that rule and as I say, we fought on different sides. And it has occurred to me as I’ve indicated that it’s the sister of the deceased who is facing me now and it’s just occurred to me that it could be my mother, my sister, my children sitting there now, because what happened to the deceased could quite easily have happened to me. I was involved in a lot of covert operations both inside and outside. Nothing, nothing like this I can tell you, but was often in the company of people, being all alone by myself, often in the company of people who thought I was one of them and had they discovered that I was not one of them, it would be my mother sitting there now, Sisi, you understand that.
So I empathise with the family of the deceased, I would be very heartless if I did not do so. And for the pain that you have had to suffer, I apologise … (Zulu), Sisi, I apologise."
It remains to be decided whether the applicants meet the requirements of Section 20(1) of Act 34 of 1995 as to whether "the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of sub section (2) and (3)."
The Committee is satisfied that the offences were committed in the course of the conflicts of the past and that all the applicant fall within the provisions of Section 20(2)(b)(f) and (g).
The Committee, after considering the guidelines set out in Section 20(3) is further satisfied that the offences committed were associated with a political objective.
In the result amnesty is GRANTED to all the applicants in respect of the following offences:
The murder of a person known as Scorpio (and whose real name might have been Oupa Ronald Madondo) during 1980 on the farm Leeuspoort at Candover in the Ngotje district near the Josini (Pongola) dam and any other offence or delict, including desecration of the corpse, directly linked to the said killing and the disposal of the body.
Although the committee on the evidence could not make a finding that the person killed was indeed Oupa Ronald Madondo, it is in any event clear that the said Madondo referred to by the family disappeared in circumstances related to the conflicts of the past. The committee is of opinion that the next of kin of the said Madondo should be considered to be victims in terms of Act 34 of 1995 and therefore refer the matter to the Committee on Reparation and Rehabilitation in terms of section 22 of Act 34 of 1995.
SIGNED AT CAPE TOWN ON THIS THE ______DAY OF ______2000.
______C. DE JAGER (AJ)
______ADV. N. SANDI
______MR I. LAX
AC/2000/152
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.
EUGENE ALEXANDER DE KOCK 1ST APPLICANT
(AM 0066/96)
WILLEM ALBERTUS NORTJE 2ND APPLICANT
(AM 3764/96)
IZAK DANIEL BOSCH 3RD APPLICANT
(AM 3765/96)
WILLEM FREDERICK SCHOON 4TH APPLICANT
(AM 4396/96)
SCHALK JAN VISSER 5TH APPLICANT
(AM 5000/97)
GERT VISSER 6TH APPLICANT
(AM 5002/97)
DANIEL JACOBUS GREYLING 7TH APPLICANT
(AM 5007/97)
FRANK Mc CARTER 8TH APPLICANT
(AM 4063/96)
NICHOLAAS JOHANNES VERMEULEN 9TH APPLICANT
(AM 4358/96)
DECISION The applicants, who will be referred to in the order set out above, all apply for amnesty for various offences related to and flowing from the abduction of and various assaults on Jabulani Sidney Msibi, a senior member of the ANC and head of intelligence of the ANC in Swaziland in or about June 1986. The assaults took place in Swaziland at the time of the abduction in Swaziland and thereafter at a club house at the Oshoek border post in the RSA where the victim was interrogated and finally at Vlakplaas in the RSA to where he was transported and further interrogated.
The applications were initially all opposed by the family members of the victims, but after having listened to the evidence of the applicants their objection to amnesty being granted were restricted to the applications of the senior officers involved namely the fourth, fifth and sixth applicants, W.F. Schoon, S.J. Visser and G. Visser. These applications were opposed on the ground that these three officers had not made a full disclosure of all relevant facts.
All the applicants testified before the Committee.
No other evidence was adduced either on behalf of the applicants or the victims. The arguments on which the objection to amnesty for the three applicants mentioned above were based centered around the content of an alleged affidavit by the victim, who had been shot in Soweto sometime after the incident which forms the subject matter of the present applications. The affidavit which relates the assaults to which the victim had been subjected to were in some respects corroborated by some of the applicants and will be dealt with later in this decision.
The evidence of the Applicants broadly corresponded, except for the extent of the assaults and the issue of whether Msibi became an Askari and informer of the Security Police. Broadly speaking, the sequence of events was as follows:
1. It was established that one Malaza, a Black security policeman in the Eastern Transvaal, had leaked information to the ANC via Msibi in Swaziland. Malaza was under the command of Gert Visser, head of the security branch in Nelspruit who in turn was under the command of Brig S.J. Visser. When confronted by Brig Stadler and S.J. Visser, Malaza admitted to this and declared himself willing to co-operate in the abduction of Msibi. After the abduction he managed to escape.
The first applicant, De Kock, received instructions from his immediate superior at Head Office, Schoon, to assist with the abduction and he in turn gave orders to the men under his command to accompany him to Swaziland with a view to the operation. These were the second, third, seventh and eighth applicants being, Nortje, Bosch and Vermeulen as well as McCarter and lastly one Paul van Dyk who was implicated but did not apply for amnesty. Greyling, who was a warrant officer in the Security Branch, was stationed at Nelspruit and worked under the command of S.J. Visser.
2. The first attempt of De Kock and his team to abduct Msibi was unsuccessful and they returned to the RSA. The next morning the operation was replanned. General Stadler, Brig Schoon and Brig S.J. Visser waited at the border post at Oshoek whilst De Kock and his members from Vlakplaas as well as the Nelspruit members, Gert Visser and Greyling accompanied them. Malaza lured Msibi to a point along the Mbabane Oshoek road where he was captured and taken to the border post where the others were waiting. The car Msibi was driving was pushed over a cliff on the Swaziland side on the order of De Kock. Although the crossing of the border into Swaziland took place at Oshoek the Vlakplaas members made use of false passports but they all crossed back into South Africa illegally. De Kock also carried an illegal firearm.
3. At the Oshoek border post Msibi was questioned by and assaulted by Gert Visser and De Kock in the presence of the senior officers. De Kock having established Msibi’s address in Swaziland returned to Swaziland and came back with documents and explosive devices, which he had found in his room. Thereafter the questioning and assaults continued until Msibi was taken to Pretoria. All the applicants testified, however, that although they had not participated in the assault they knew about it and associated themselves with it. The versions about the severity of the assault differed and the committee is unable to make a particular finding on the intensity of the assault but it is clear that it endured for several hours and not only two or three hours as testified by S.J. Visser. 4. At Vlakplaas Msibi was further assaulted by De Kock who inter alia hit him with a belt. He was, according to de Kock, reluctant to co-operate, but eventually "neutralised" inter alia by the fact that he had been persuaded to give evidence against two informers who had been charged in the South African courts. Despite this, de Kock testified that Msibi had remained loyal to the ANC and consistently refused to divulge sensitive information relating to the ANC. He was handed to a certain senior security officer Buchner and later released. Although a number of the applicants had heard that Msibi had subsequently been shot somewhere in Soweto none of them were able to shed any light on the circumstances in which he had been killed. There was also no evidence and information pointing a finger at the applicants.
An analysis of the evidence shows certain discrepancies in the various versions of the applicants in the following respects: the duration of the questioning and the time that Msibi was held at Oshoek, the nature of the assaults on Msibi, and the extent to which Msibi was willing to and in fact co-operated with the security police after he had been "neutralised". The duration of the time that he was held appears not to be such a material aspect of the incident that it should stand in the way of the granting of amnesty, especially if one takes into consideration that this incident had taken place some fourteen years ago. There is in the opinion of the Committee little reason why an applicant would be deliberately untruthful in this regard. As far as the extent of the assaults at the Oshoek border post is concerned, the Committee cannot make a finding simply on the strength of the affidavit purportedly made by the victim, Msibi, although there is some suspicion in the minds of committee members that the assaults may have been of a much more serious nature than admitted to by the applicants. Broadly speaking, however, the applicants corroborate each other and at least conceded that it may have been more serious than they could recall. The evidence of de Kock and others and that of the fifth applicant, S.J. Visser, as to whether Msibi was eventually turned into an Askari differs substantially. It is however clear that De Kock’s association with Msibi had come to an end much earlier than that of S.J. Visser and Greyling who had worked with him subsequently to De Kock. In the circumstances the Committee cannot make a finding that any of the applicants has not made a full disclosure of all relevant facts. In so far as the political objectives of the applicants are concerned the Committee is satisfied that the offences were committed with a political objective as defined in he Promotion of National Unity and Reconciliation Act, 34 of 1995.
In the premises amnesty is GRANTED to all nine of the applicants:
Eugene Alexander de Kock, Willem Albertus Nortje, Izak Daniel Bosch, Willem Frederick Schoon, Schalk Jan Visser, Gert Visser, Daniel Jacobus Greyling, Frank Mc Carter and Nicholaas Johannes Vermeulen for all offences and delicts directly associated with or flowing from the conspiracy to abduct, the abduction and the assault on the victim Jabulani Sydney Msibi from Swaziland in or about June 1986.
Edna Gigaba, Sandile Gigaba, Lindiwe Gigaba, relatives of the victim and all of 7902 Zone 1, P.O Pimville 1808 as well as Thabiso Msibi and Busisiwe Nkambule, the son and common law wife of the victim are all referred to the Committee on Reparation and Rehabilitation in terms of section 22(2) of the Act for consideration as victims.
SIGNED AT ______THIS DAY OF ______2000.
______JUDGE J MOTATA
______ADV F.J. BOSMAN
______ADV N. SANDI
AC/2000/153
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.
MOHAMMED RAFIQ ROHAN 1ST APPLICANT
(AM 7162/97)
RIAZ SALOOJEE 2ND APPLICANT
(AM 7158/97)
ABOOBAKER ISMAIL 3RD APPLICANT
(AM 7109/97)
DECISION
These are applications for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act").
The applicants apply for amnesty in respect of a number of different sets of activities. Other panels of the Amnesty Committee either in chambers or after hearings have already decided upon some of these activities.
For the purposes of this application, the acts for which amnesty is being sought are best summarised from the Judgment and indictment at the trial of Mohammed Rafiq Rohan ("Rohan"). He was convicted of the following:
1. Terrorism in contravention of Section 54 (1) of Act 74 of 1982, read with Sections 1, 54 (6), 54 (7) and 69 of the said Act, in that on or about 28 January 1989 and at or near Ridge Road, Durban, the accused placed an explosive device, consisting of 2 (two) 158 Mini-Limpet mines and 4 (four) SZ-3 demolition charges, at an electricity transformer in front of the South African Police ("SAP") Radio technical workshop and caused the device to detonate, causing damage to the said transformer and adjacent State and private properties.
2. Terrorism in contravention of Section 54 (1) of Act 74 of 1982 read with Sections 1, 54 (6), 54 (7) and 69 of the said Act in that on or about 10 March 1989 and at or near the Natal Command Headquarters of the South African Defence Force ("SADF"), Marine Parade Durban, the accused placed an explosive device consisting of 2 (two) 158 Mini-Limpet mines an 4 (four) SZ-3 demolition charges and caused the device to detonate, causing damage to the adjacent State and private properties.
3. Unlawfully and willfully causing an explosion, upon or about 7 April 1989 and at or near the SAP Single Quarters, C.R. Swart Square, Stanger Street, Durban, whereby life and property was endangered. 4. Unlawfully having in his possession, during the period 31 December to 8 April 1989 and at or near Albert Park, Durban, 501 Trafalgar Heights, Brickfield Road, Overport, Durban and 52 Spearman Road, Sydenham Durban, handgrenades and bombs to wit:
(a) 20 (twenty) SZ-3 demolition charges;
(b) 19 (nineteen) 158 Mini-Limpet mines;
(c) 35 (thirty-five) RGD-5 handgrenades;
(d) 35 (thirty-five) F1 handgrenades.
5. Unlawfully having in his possession, during the period 31 December to 8 April 1989 and at or near Albert Park, Durban, 501 Trafalgar Heights, Brickfield Road, Overport, Durban and 52 Spearman Road, Sydenham Durban, machine guns or machine rifles and/or parts thereof to wit:
(a) 1 (one) AKM machine rifle Serial No. 1964/A3798.
(b) 1 (one) AKM machine rifle Serial No. 1965/3N2422.
(c) 8 (eight) AKM machine rifle magazines.
6. Unlawfully having in his possession, during the period 31 December to 8 April 1989 and at or near Albert Park, Durban, 501 Trafalgar Heights, Brickfield Road, Overport, Durban and 52 Spearman Road, Sydenham Durban, firearms without being licensed to possess them to wit:
(a) 1 (one) Makarov semi-automatic pistol Serial No. SA5058;
(b) 1 (one) Makarov semi-automatic pistol Serial No. 6E5169;
(c) 1 (one) Makarov semi-automatic pistol Serial No. PY3059;
(d) 1 (one) Makarov semi-automatic pistol Serial No. 6E2513;
(e) 1 (one) Makarov semi-automatic pistol Serial No. PK4303;
(f) 10 (ten) Makarov pistol magazines.
7. Unlawfully having in his possession, during the period 31 December to 8 April 1989 and at or near Albert Park, Durban, 501 Trafalgar Heights, Brickfield Road, Overport, Durban and 52 Spearman Road, Sydenham Durban, ammunition without being in lawful possession of an arm or arms capable of firing such ammunition to wit:
(a) 160 (one hundred and sixty) rounds of 9 mm ammunition;
(b) 240 (two hundred and forty) rounds of 7,62 x 39 mm ammunition.
Rohan was sentenced to a period of imprisonment for the above convictions. He was released under the prevailing indemnity legislation on 20 May 1991. Neither Riaz Saloojee ("Saloojee") nor Aboobaker Ismail ("Ismail"), the other two applicants before us, were prosecuted in respect of these matters.
The Leader of Evidence informed us that most of the people injured in the incidents forming the subject matter of the hearing had been traced and had been notified of the hearing. These people have indicated that they did not wish to attend these proceedings and none did so. Rohan testified and confirmed that he had been recruited into Umkhonto weSizwe ("MK") the military wing of the ANC African National Congress ("ANC") during October 1998 by Ismail and that he thereafter received intensive basic, explosives and weapons training from Saloojee. He said that at the time he knew both Ismail and Saloojee as Rashid and Kelvin Khan respectively. The training occurred in Zimbabwe during several visits there by Rohan in his capacity as a journalist.
After his training was completed Rohan was equipped with a range of weapons and explosives and commencing in January 1989 began to carry out the activities that formed the basis of his convictions. Rohan was arrested after the last of these incidents.
Saloojee testified and confirmed his application for amnesty as well as the statement, application and evidence of Rohan insofar as they related to him. He further confirmed that he had ordered Rohan to commit the various acts and that he had reported to Ismail as to the outcome. Ismail was at the time his commander.
Ismail testified and confirmed his application for amnesty and statement. He also confirmed the applications, statements and evidence of Rohan and Saloojee insofar as they related to him. He further confirmed that he had ordered Saloojee and Rohan to commit the various acts and that he had been their commander at the time. No further evidence was led on behalf of the applicants or any other parties.
It is clear to us that all the applicants acted in their capacities as members of MK. Their actions as aforesaid were in line with the policies and guidelines of the ANC at the time. They all appreciated that as a consequence of their actions, in addition to military targets and personnel, civilians might be killed or injured and property damaged. We are also satisfied that they committed such acts during the course of the conflicts of the past and that such acts are acts associated with a political objective as required by the Act. We are also satisfied that they have disclosed all relevant facts.
One aspect, which requires discussion, is the issue of whether we can properly hear Mr Ismail’s application. These instances are not specifically canvassed in his application. He seeks to rely on certain passages in his application. He explains that due to the large number of operations he commanded and the period of time over which he acted as a commander, as well as the lack of records, he was unable, as at the time of making his application, to remember each and every instance where he had commanded cadres to carry out operations. He nevertheless expressed an intention to apply for amnesty for all acts carried out by him or by those under his command. This is explicitly stated in his application for amnesty.
His situation is different to those of other leadership figures or persons on leadership positions. Whereas they have made largely symbolic applications for amnesty where few or no acts are specifically noted or acknowledged, in the present case, amnesty is applied for in specific terms and even those instances affected by poor memory or lack of records are intended to be applied for.
We heard argument and were referred to relevant decisions of the Amnesty Committee in which other applicants had to varying degrees couched their applications in similar or slightly different terms. We have considered such arguments and believe that Ismail’s application is entitled to be considered despite having made no mention of the specific incidents under consideration in this matter.
We say this for the following reasons: The primary purpose of the Act is to achieve as complete a picture as possible of the various gross violations of human rights and other acts, offences or delicts committed during the conflicts of the past. With specific reference to the amnesty process, applicants are encouraged to reveal their participation in return for the possibility of receiving amnesty. Where, as in the present case, an applicant gives a reasonable explanation for not mentioning the specific instance under consideration but still expresses an intention to apply for other matters he is unable to remember as at the time of making the application, and the Committee is satisfied as to the applicant’s bona fides, we are of the view that it would be in order to consider such application.
In the present applications, Rohan has referred to Saloojee as being the person who instructed him. Saloojee in turn refers to Ismail. Ismail has given a credible explanation for his failure to mention the matter and we are satisfied that he did in fact intend to apply for it. With regard to Saloojee and Aboobaker a further aspect requires attention. Saloojee applied for amnesty in respect of his activities as Regional Commander of Ordinance, in Zimbabwe, during the period 1988 to 1990. Aboobaker applied for amnesty in respect of his activities as Chief of Ordinance, during the period 1987 to 1994.
Such activities entailed gleaning relevant information regarding future operations planned by MK and then directing appropriate ordinance and materials to places where they would be required for operations by cadres of MK. Although neither of them knew precisely what specific operations were to be conducted and by whom, they facilitated the supply, importation and caching of such weaponry, materials and ammunition into South Africa. We may mention that ordinance and materials are shorthand for the gamut of weaponry and related supplies required for the waging of the liberation struggle.
Once the ordinance had been safely cached inside the country, their operatives would send them sketch plans identifying the localities of such caches. These would be handed to the operational commanders who would inform the relevant cadres. Both applicants accepted that MK cadres would use the ordinance in operations and that possible death and injury to persons and damage to property would be likely to ensue.
Neither of the applicants is able to give specific details with regard to the chronology, type, quantity and locations of such operations. They say that this is because of the difficulty of recall due to the lapse of time and the lack of records due to security considerations.
Saloojee furnished the committee with the names of the operatives who acted under his command. He emphasised that although they brought weapons and explosives into the Republic of South Africa they were not party to the planning of any specific offences and did not have knowledge thereof.
With regard to these instances is also clear to us that the applicants acted in their capacities as members of MK. Their actions as aforesaid were in line with the policies and guidelines of the ANC at the time. They all appreciated that as a consequence of their actions, in addition to military targets and personnel, civilians might be killed or injured. We are also satisfied that they committed such acts during the course of the conflicts of the past and that such acts are acts associated with a political objective as required by the Act. We are also satisfied that in the circumstances they have disclosed sufficient relevant facts.
In the result, we are satisfied that the applicants have complied with the requirements of the act and they are GRANTED amnesty as follows:
In respect of Mohammed Rafiq Rohan, his convictions as set out above as well as all delicts flowing therefrom.
In respect of Riaz Saloojee and Aboobaker Ismail:
1. The offences for which Mohammed Rafiq Rohan was convicted as set out in clauses 1 to 7 on pages two to four above, as well as all delicts flowing therefrom;
2. All offences, delicts, acts or omissions arising out of their activities as Regional Director of Ordinance, in Zimbabwe during the period 1988 to 1990, and Chief of Ordinance, during the period 1987 to 1994, respectively, and which were carried out with weapons and explosives which were brought into the country by one or more of the following operatives acting under their command:
2.1 Felicity Barbara Anderson;
2.2 John Sporoplos;
2.3 Nigel Crawhall;
2.4 James Garraway;
2.5 Martha Gordon; 2.6 Evan Abrahamse;
2.7 Dominic Pelissimo;
2.8 Klaus and René Von Twillert;
2.9 Doug McKinley;
2.10 Hazel Compton;
2.11 Lee Hobbs;
2.12 Jackie Nolte;
2.13 Bob Jolise;
2.14 Pier Thierry.
The following persons who were either injured or had property damaged or destroyed, are found to be victims and are accordingly referred to the Reparation and Rehabilitation Committee in terms of Section 22 (1) of the Act:
Mrs. V.D. Lingen
Mrs. S.B. Van Niekerk
Cmdt. J.P. Smalberger
Mrs. Nettleton
Cmdt. P.J. Loots
Mrs. A. Loots
Cmdt. A.G.W. Saunders
Mrs. M.C.M. Saunders
Cmdt. A. Coetzee
Mrs. L.S. Coetzee
Cmdt. C.F. Crous
Maj. J.A. Moxham
Maj. C. Maser
Mrs. Z. Cloete
Brig. J.H. Pretorius
Ms. Lyle
SIGNED AT CAPE TOWN ON THIS ______DAY OF ______2000.
______JUDGE C. DE JAGER
______
ADV. S. SIGODI
______
MR. I. LAX AC/2000/154
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.
THEMBILE BAAS MZONDEKELI
(Also known as THEMBILE ZINCA) APPLICANT
DECISION
The applicant makes an application in terms of Act 34 of 1995 as amended (the Act) for amnesty in respect of offences committed just outside the Great Centenary Hall, New Brighton, Port Elizabeth.
On the 2 August 1976, the applicant testified that he attended a boxing tournament at the Centenary Hall, Port Elizabeth. He was outside the hall itself and was being prevented from entering the hall. He was one of many who were in that situation. He had already purchased a ticket and he realised that he would not be refunded.
Just then people started throwing stones at the policemen who were in the immediate vicinity. He stated that he threw stones essentially because he was not going to be refunded. He added that there were other reasons for his actions, which he did not detail, except to say that it would liberate the oppressed people of the time. He did not expand on these latter reasons.
His application forms, which he himself completed, contained answers to questions that contradicted what he testified to. Amongst the crimes that are contradicted are two important matters.
Firstly his political affiliation is quite different. In his application he stated that he was a member of the African National Congress and Umkhonto weSizwe whereas in his evidence he stated that he was a supporter of the Black Consciousness Movement. Secondly he implicates a number of other people in the commission of the offences when answering the questions in the application form. On the other hand he testified that the persons mentioned in his written application were not party to these offences.
He explained these as mistakes caused by his having misunderstood the questions. This did not make sense because the questions are clear and simple and not likely to be misunderstood. This is even more so because his answers were not out of place and quite logical.
We have difficulty in accepting these explanations.
Furthermore he did not make a good impression on the committee. His efforts to persuade us of his explanations for the discrepancies are not convincing.
We have doubt that he has disclosed everything related to the incident. We are also not persuaded that his actions during the incident were politically motivated. In the circumstances, the committee is not satisfied that the applicant has complied with the requirements of the Act, and the application is DISMISSED.
DATED AT CAPE TOWN THIS ______DAY OF SEPTEMBER 2000.
______JUDGE R. PILLAY
______JUDGE D. POTGIETER
______ADV. N. SANDI AC/2000/155
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.
TSHEPO NICODEMUS KGOSI APPLICANT
(AM 3445/96)
DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The matter relates to the killing of Alfred Mbuyiselo Wilo ("the deceased") at Evaton, Vereeniging on 25 December 1990. Pursuant to the incident, Applicant was tried and convicted of murder together with a number of co-accused in the Transvaal Provincial Division of the then Supreme Court under case number CC78/92. Applicant was sentenced to 12 years imprisonment.
Applicant testified in support of the application, which is unopposed. The evidence can be set out briefly as follows. At all material times, Applicant was a member of the Self-Defence Unit ("SDU") as well as the chairperson of a street committee in Evaton. It is common cause that these structures were formed by and affiliated to the African National Congress ("ANC") of which Applicant was a supporter. According to the uncontested evidence of Applicant, the duties of the street committee included protecting the community against attacks from anti-ANC elements, in particular vigilante groups such as the Inkatha Freedom Party ("IFP").
The deceased had a history of conflict with members and supporters of the ANC living in the Evaton community. Applicant had received numerous complaints concerning the behaviour of the deceased. Applicant spoke to a member of the deceased’s family in connection with the deceased’s conduct.
On the last occasion prior to the incident in question, Applicant had spoken to the deceased personally in regard to a complaint that the deceased had attacked a lady and her family in their home. On that occasion, Applicant ordered the deceased to repair the damage which he had caused to the house in the course of the attack. It was clear from his actions and statements that the deceased was opposed to members of the ANC and Applicant had suspected that he could be a member of the IFP.
On the day in question, Applicant came upon a group of ANC supporters who had apprehended the deceased. Applicant learnt at the scene that the deceased had stabbed and killed a 13 year old member of the ANC Youth League, one Lester Shoping. This killing had incensed the community as well as the Applicant. Applicant took a knobkierie and struck the deceased one blow to the head. This caused the deceased’s death. Applicant then addressed the crowd that had gathered which led to the crowd setting the body of the deceased alight. Applicant did not participate in the latter incident. Applicant indicated that he killed the deceased because the latter was harassing members of the ANC and also killed Lester Shoping. His objective in killing the deceased was to send a message to those who wanted to kill ANC members that this would not be tolerated. Subsequent to this incident there were no further attacks on members of the ANC at Evaton.
In assessing the application, we take into account that the evidence of Applicant was uncontraverted. Applicant has made a good impression upon us and we find no grounds for rejecting his version. On the strength of this version, which we accept as true, the deceased had shown himself to be an enemy of the ANC through his conduct. This was accepted as such by the Applicant who suspected the deceased of being an IFP member. Insofar as the Applicant was concerned, this belief was reinforced by the killing of Lester Shoping a known member of the ANC Youth League. This fact clearly sparked off the action taken against the deceased. In the circumstances, the attack upon the deceased obviously fell within the duties of the Applicant to protect members of the community against attacks from anti-ANC elements. Applicant had reasonable grounds for the belief, which was bona fide in the circumstances, that he was acting against a political enemy. This was clearly the principal motivation for the action taken against the deceased. This is also borne out by the fact that a large section of the community participated in and thus approved of the attack upon the deceased. It is understandable that Applicant and members of the community would have been angered and deeply hurt, as Applicant put it, by the killing of Lester Shoping. This does not detract from the fact that the history of conflict involving the deceased and ANC members and supporters played a determining role in the attack on the deceased. The disclosure that he was angry, illustrates the candour of the Applicant. It would be erroneous to conclude that Applicant was solely motivated by anger and therefore had no political objective in acting against the deceased. Such a finding would conflict with the uncontested evidence of Applicant concerning the anti-ANC conduct of the deceased and the fact that the latter was perceived as a political enemy. It was, moreover, never put to the Applicant in evidence that he had no political objective and acted solely in a fit of rage. In a similar vein, it would be speculative to find that intoxicating liquor was the motivating force behind the killing of the deceased. No basis was laid in the evidence before us to justify such a finding. Little weight can be attached in this regard to the trial proceedings, which were conducted under completely different circumstances from the amnesty application where Applicant’s guilt is admitted.
Having carefully considered the matter, we are satisfied that the Applicant has made a full disclosure of all relevant and material facts and that the killing of the deceased constitutes an act associated with a political objective as envisaged in the Act. In the circumstances we are satisfied that the application complies with all of the requirements of the Act.
Amnesty is accordingly GRANTED to Applicant in respect of the killing of Alfred Mbuyiselo Wilo at Evaton, Vereeniging on 25 December 1990.
In our opinion the next-of-kin of the deceased are victims and they are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED AT CAPE TOWN THIS ______DAY OF ______2000.
______
D. POTGIETER, A.J.
______
C. DE JAGER, A.J.
______
ADV. F. BOSMAN AC/2000/156
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.
PHILLIPPUS JOHANNES CORNELIUS LOOTS APPLICANT
(AM 5462/97)
DECISION
Applicant was the head of Unit B in the Northern Transvaal Security Police Branch. He applies for amnesty for the attempted murder of Father Smangaliso Mkhatshwa in Durban during or about 1987. Jacques Hechter (AM2776/96) and Paul Jacobus Jansen van Vuuren (AM2777/96) applied for amnesty for this incident and were granted amnesty by another panel of the Amnesty Committee.
The applicant testified that he does not remember the incident all too well and that he relies for the greater part on detail provided by Hechter and Van Vuuren in their applications. Father Mkhatshwa was represented at the hearing and his lawyer, Mr Brian Koopedi indicated that his client did not oppose the application for amnesty.
Hechter and van Vuuren’s evidence was that the applicant, when instructing them to assassinate Father Mkhatshwa, told them that the instructions originated from General Basie Smit. Applicant does not remember such instructions to him nor that he ever had discussed this matter with Smit. For the rest he remembers having given instructions to Hechter and van Vuuren and the calling off of the mission after the failed attempt on the life of Father Mkhatshwa.
The Committee is satisfied that the applicant has made a full disclosure of the relevant facts relating to the incident, that it took place within the context of the conflicts of the past and that it was associated with a political objective.
Amnesty is therefore GRANTED to the applicant for the attempted murder of Father Smangaliso Mkhatshwa whose name is being referred to the Reparation and Rehabilitation Committee for consideration.
SIGNED AT CAPE TOWN THIS THE ______DAY OF ______2000.
______
JUDGE S KHAMPEPE ______
ADVOCATE I LAX
______
MR W MALAN AC/2000/157
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.
JOEL GEORGE MARTINS APPLICANT
(AM 6450/97)
DECISION
The applicant is applying for amnesty in respect of two incidents namely:
(1) Murder of Benjamin Langa on 20 May 1984 in Pietermaritzburg.
(2) Attack on a South African Police vehicle at the Dube Hostel, Soweto Johannesburg, on 21 May 1988.
The prescribed application form was submitted and a further detailed statement from applicant was submitted.
The application was not opposed by the victims.
APPLICANT’S POLITICAL BACKGROUND
The applicant left South Africa during or about May/June 1984 to join the African National Congress. Before leaving the country he was residing with his elder brother and schooling in Pietermaritzburg. He was active in student politics and was the Vice President of D.C.O Matiwane Youth League. He was also involved in various structures and campaigns of the United Democratic Front (UDF). He knew Sipho Xulu as a political activist and as a member of the Sobantu Youth League. They were also supporters of the African National Congress.
MURDER OF BENJAMIN LANGA
During or about May 1984, the applicant met Sipho Xulu. Sipho Xulu had left the country in 1982 to go into exile. When Sipho Xulu came back, he was in the company of Lucky Payi and Dennis Mzamo Hadebe. Xulu advised the applicant that he was back in the country in order to recruit more people for training for the continuation of the armed struggle. He also sought information on the political developments in Pietermaritzburg since he had left.
The applicant advised Xulu that a certain Dr Faith Matlaopane had testified at applicant’s brother’s treason trial. He informed Xulu that Dr Matlaopane had gone overboard when he gave the evidence. It did not seem as if he had been forced to do so. It was then agreed that Dr Matlaopane would be killed. On that night applicant, Xulu, and Payi went to Dr Matlaopane’s home. They realised that he was present. They however decided not to kill him because there was a possibility that his wife and baby could also be killed. It was after this failed attempt that applicant was informed by Xulu that they had also been given an instruction by their commander identified only as Ralph to eliminate Benjamin Langa.
Applicant knew Benjamin Langa as a comrade and as a political activist. He also knew where he lived. Xulu and Payi advised, the applicant that Benjamin Langa had been selling out comrades.
Xulu and Payi were both armed with pistols. The applicant agreed with the plan to kill Benjamin Langa. At that time nobody questioned anything that came from the ANC and applicant did not have any basis for questioning it.
Applicant then took Xulu and Payi to Benjamin Langa’s home. He knocked on the door and Ben opened. Xulu and Payi both entered and shot him.
Subsequent to this murder the police started looking for the applicant. He left the country and went into exile.
Whilst in exile he discovered that the person who had given the instruction to Xulu and Payi was actually Eddie Lawrence. He had been recruited by the Security Police and was handled by a senior security police official at the C.R. Swart Square Police Station in Durban. Lawrence’s true role as an agent of the apartheid regime was uncovered by the ANC. He subsequently died in exile during 1988.
ATTACK ON SOUTH AFRICAN POLICE VEHICLE
After leaving the country in 1984, the applicant remained in Lesotho until approximately September 1984. Thereafter he received training in various places until he returned to Lusaka where he was recruited to the Special Operations by Johannes Mnisi and Gordon Webster.
He was then deployed in South Africa. He was based in Soweto where he established two separate units. One of the units comprised one Zakes (now deceased) and another person whose name he could not recollect. The main objective for the establishment of these units was to blow up pylons, substations, attacking the police, sabotaging electricity pipe lines etc. They were also to recruit and train operatives inside the country.
The only operation which was carried out by this unit was the operation on 21 May 1988 in which a police van was ambushed and attacked on the railway line which separates Dube and Meadowlands in Soweto.
The applicant had been informed by other units that the police lived at a section of the Meadowlands Hostel.
They went to the hostel, waited for the police van, opened fire and retreated. He could not recall how many shots each of them fired.
The vehicle came to a halt. They stood about 100m from the van. They could not see who was in the van.
Sometime after this incident, applicant was arrested and detained under Section 29 of the Internal Security Act. He was rescued by another comrade and returned to Botswana and Lusaka. Only one victim, Zizwe Abednigo Mthethwa came to the hearing and he did not oppose the application.
AD INCIDENT ONE
Although this matter was not opposed, the members of the Langa family submitted a letter written by the President of the African National Congress, Mr Thabo Mbeki. In this letter the President confirmed the correctness of the ANC’s submission to the TRC and in particular paragraph 6.2.7, which reads as follows:
"6.2.7 Deliberate disinformation, leading to mistaken attacks – In a few cases deliberate disinformation resulted in attacks and assassinations in which dedicated cadres lost their lives. In one of the most painful examples of this nature, a state agent with the MK name of "Fear" ordered two cadres to execute Ben Langa on the grounds that Langa was an agent of the regime. These cadres – Clement Payi and Lucky Xulu – carried out their orders. This action resulted in serious disruption of underground and mass democratic structures in the area and intense distress to the Langa family – which was the obvious intention of Fear’s handlers. Once the facts were known to the leadership of the ANC. President Tambo personally met with the family to explain and apologise for this action."
The Committee finds that the killing of Ben Langa was never authorised by the ANC and Ben Langa was never an informer nor a spy of the apartheid regime.
In order to be able to qualify for amnesty the applicant must satisfy the Committee that
(1) the application complies with the requirements of the Act.
(2) the act, omission of offence, is an act associated with political objective.
(3) the applicant has made a full disclosure of all relevant facts.
Having heard the evidence of the applicant, we are satisfied that the applicant has complied with the requirements of the Act and is GRANTED amnesty as follows:
(1) Murder of Benjamin Langa on 20 May 1984.
(2) Unlawful possession of firearms on 20 May 1984.
(3) Unlawful possession of ammunitions on 20 May 1984.
(4) Attempted murder of Zizwe Abednigo Mthethwa on 21 May 1988.
(5) Unlawful possession of firearms on 21 May 1988.
(6) Unlawful possession of ammunition on 21 May 1988.
(7) Malicious injury to state property on 21 May 1988.
Zizwe Abednigo Mthethwa is hereby referred to the Rehabilitation and Reparation Committee to be declared victim in terms of the Act.
SIGNED ON THIS THE ______DAY OF ______2000.
______
C. DE JAGER (AJ)
______
ADV. S. SIGODI
______
MR ILAN LAX AC/2000/158
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.
JOHANNES VELI MAZIBUKO 1ST APPLICANT
(AM 6033/97)
TEBOHO BENNY TLATSI 2ND APPLICANT
(AM 7397/97)
DECISION
INTRODUCTION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). The applications, which are unopposed, relate to the activities of the Basil February Unit of Umkhonto weSizwe ("MK"), the military wing of the African National Congress ("ANC"). Both Applicants, who were attached to this MK unit, as well as the regional East Rand MK commander Ernest Sigasa testified in support of the application. No other evidence was presented at the hearing.
Before dealing with the merits of the matter, it is necessary to consider an application for an amendment made on behalf of the second Applicant, Mr Tlatsi. In the course of the testimony of Mr Tlatsi, it became apparent that his application form only deals with one incident, namely the bombing of KwaThema Administration Offices in which he was personally involved. He was not involved in any of the other incidents which form the subject matter of the application of first Applicant, Mr Mazibuko, although all these operations were planned and executed by the MK unit.
Mr Kopedi, who appeared on behalf of the Applicants, applied for the amendment of the application of Mr Tlatsi to include the other incidents referred to in the application of Mr Mazibuko. Mr Kopedi conceded that there is no reference at all in the application form of Mr Tlatsi to any of the other incidents in question. It is, moreover, impossible to read such a reference into any of the other documentation which forms part of the record before us.
In the circumstances, it would be incompetent for us to allow an amendment which will effectively introduce new incidents into the application after the expire of the cut-off date for submitting amnesty applications in terms of the Act. The application for amendment is accordingly refused and the application of Mr Tlatsi will be considered only in respect of the incident which is dealt with in the application form.
The relevant facts relating to the applications are uncontested and will be summarised briefly. Mr Mazibuko was the commander of the Basil February MK Unit and Mr Tlatsi its Commissar. The unit was formed by the Johannes Nkosi MK Unit under the command of Mr Sigasa. Mr Sigasa was also the MK regional commander in the East Rand. Both Applicants were given military training inside South Africa and were subject to the command structure headed by Mr Sigasa. Applicants and their unit were given a broad mandate, in accordance with the policy of MK, to attack appropriate targets representing the political enemy at the time. The activities of the unit had to be reported by Mr Mazibuko, as commander, to the East Rand regional command, under the leadership of Mr Sigasa. All of the targets attacked during the incidents forming the subject matter of the applications fell within the broad mandate and policy of MK. All of the incidents were duly reported to the regional MK command who accepted the operations as authorized.
It is now necessary to specify the various incidents which form the subject matter of the applications.
ATTACK ON POLICE VEHICLE AT DUDUZA STADIUM
This operation was executed by Mazibuko on 11 June 1989. After the unit planned the attack, he reconnoitered the stadium for two weekends. A soccer team made up of members of the South African Police came to play matches at the stadium every weekend. A decision was taken to attack the members of the police by attaching a limpet mine to the vehicle being used to transport them to and from the stadium. On the day in question, Mazibuko proceeded to the stadium with the limpet mine and eventually attached it to the police vehicle towards the end of the soccer match. The limpet mine was primed to detonate at a time when the vehicle had left the stadium and was on its way to deliver the police officers to their destination.
As a result of delays in the departure of the police, the limpet mine eventually detonated while the vehicle was still parked at the stadium. The vehicle was damaged and some members of the public slightly injured in the explosion.
ATTACK AT THE DUDUZA ADMINISTRATION OFFICES
This operation was also executed by Mazibuko personally on 22 May 1989. He placed a mini limpet mine at a drain on the premises of the Duduza Administration Offices. The objective was to cause damage to the buildings in question. The mine was, however, discovered by the police and defused.
ATTACK AT KWATHEMA POLICE STATION
This attack was carried out by Mazibuko at approximately 2.00 a.m. on 22 June 1989. He attached a mini limpet mine to the building which was later damaged when the mine exploded.
ATTACK AT DUNNOTTAR POST OFFICE
This attack was carried out by Mazibuko during October 1988. Certain elections were being held at the time and the intention was to disrupt these elections. The area was kept under surveillance until it was clear that there was nothing that could interfere with the attack. The initial plan was to place a super limpet mine in the toilets forming part of the complex. After Mazibuko proceeded to the toilets he noticed the presence of members of the security police in the vicinity of the toilets. He became apprehensive and decided to find another place inside the building to place the mine. He decided upon a dustbin that was close to one of the walls of the building and placed the limpet mine inside the dustbin. The mine eventually exploded causing damage to the building.
ATTACK AT BRAKPAN HOME AFFAIRS OFFICES
In this incident, Mazibuko placed a limpet mine against the wall of the Home Affairs offices on a Sunday during December 1988. The mine detonated causing damage to the building.
ATTACK AT TSAKANE POLICE BARRACKS
The complex in question which accommodated South African Police as well as Municipal Police personnel was attacked during 1988. After the movements of the security personnel was surveilled, Mazibuko placed a super limpet mine against the wall of one of the houses occupied by the security personnel. On his way out of the complex, he was spotted and fired at by members of the security forces. Mazibuko managed to escape and subsequently learnt that the mine was discovered and defused.
ATTACK AT KWATHEMA ADMINISTRATION OFFICES
This attack was actually carried out by Tlatsi on 20 October 1988 and it forms the subject matter of his amnesty application. The administration offices in question were utilised as a voting station for certain local government elections which were taking place at the time. Applicants’ unit decided to attack the complex in order to demonstrate opposition to these elections. Tlatsi was ordered by Mazibuko to take charge of the operation. On the day in question, Mazibuko had to write examinations in KwaThema, but visited the vicinity of the offices on his way to the examination venue, in order to ascertain whether the attack was successfully executed.
Tlatsi executed the attack by placing a limpet mine in the toilets of the building. The limpet mine eventually detonated causing damage to the building.
ATTACK AT NIGEL POST OFFICE
This attack was carried out by Mazibuko on 14 April 1989. He placed a limpet mine in a manhole under the building. The limpet mine eventually detonated damaging the building.
Pursuant to some of these incidents, Applicants were charged together with a number of other persons on various counts of terrorism. The criminal trial commenced in the Pretoria Regional Court but was never concluded due to the fact that Applicants and their co-accused were granted indemnity during 1991.
CONCLUSION
Having carefully considered the matter, we are satisfied that all of the incidents in question constitute acts associated with a political objective as envisaged in the Act. We are satisfied that the incidents fell within the mandate and orders of Applicants’ MK unit and within the policy of the ANC and MK. We are, moreover, satisfied that the Applicants have made a full disclosure of all relevant facts. In the circumstances all of the requirements of the Act have been complied with.
Amnesty is accordingly GRANTED to the Applicants for the offence of Terrorism, or any competent verdict, encompassed by the following incidents:
1. JOHANNES VELI MAZIBUKO
1.1 Attack on police vehicle at Duduza Stadium on 11 June 1989;
1.2 Attack at the Duduza Administration Offices on 22 May 1989;
1.3 Attack at KWATHEma Police Station on 22 June 1989;
1.4 Attack at Dunnottar Post Office during October 1988;
1.5 Attack at Brakpan Home Affairs Offices during December 1988;
1.6 Attack at Tsakane Police Barracks during 1988;
1.7 Attack at KWATHEma Administration Offices on 20 October 1988;
1.8 Attack at Nigel Post Office on 14 April 1989.
2. TEBOHO BENNY TLATSI
Attack at KwaThema Administration Offices on 20 October 1988. In our opinion, the persons injured in the incidents for which amnesty is hereby granted, are victims and are accordingly referred for consideration in terms of Section 22 of the Act.
DATED AT CAPE TOWN THIS ______DAY OF ______2000.
______
D. POTGIETER, A.J.
______
C. DE JAGER, A.J.
______
ADV. L. GCABASHE AC/2000/159
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.
SIFISO SIPHIWE KUNENE APPLICANT
(AM 6179/97)
DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act").
The applicant has applied for amnesty on four separate application forms in respect of a number of different sets of activities:
1. The smuggling of weapons and explosives into South Africa, giving these to three unit commanders and instructing them to use the arms to attack enemy personnel during the period 1988 to 1990, at Umhlazi and Claremont in the vicinity of Greater Durban.
2. The throwing of an F1 defensive grenade through the window of a house in Z section Umhlazi, in an attempt to kill one Nkanyiso Malinga and two other members of the KwaZulu Police ("KZP") on 11 June 1990.
3. The ordering of two explosives both on 7 October 1988 at two branches of CNA, the one at 320 West Street, Durban and the other at 14 Pine City, Hill Street, Pinetown.
4. The recruiting of people for military training by the African National Congress ("ANC"), both in and outside of South Africa during the period 1986 to 1990.
The last of these applications was withdrawn at the commencement of the hearing because it no longer constitutes an offence.
Kunene testified and confirmed that he joined the ANC in 1984. Initially he had been more involved in the political arena. He had been recruited into Umkhonto weSizwe ("MK") the military wing of the ANC during 1986 and was trained internally. He was arrested and detained for a year during 1987 and 1988. Thereafter he was released and he went to Swaziland where he received further training in 1988.
After his training was completed he returned to the country and made contact with three unit commanders:
1. "Themba" aka Fakazi from Umhlazi; 2. Thokalethe Sulimane Chamane also from Umhlazi (Mr. Chamane apparently died a few months prior to the hearing);
3. "Shawn" Dube from Claremont.
He then instructed them to carry out various operations. We have not heard the details of such operations and the applicant has not applied for amnesty for them. He then traveled regularly between South Africa and Swaziland on many occasions reporting back on their activities and smuggling mostly hand grenades and firearms into the country. He was unable to say how many trips he had made or give precise details as to the quantity of arms and explosives.
With regard to the second instance applied for, the applicant testified that Malinga was an accomplice of Siphiwe Mvuyane who was also a member of the KZP and who was involved in acts of violence against the community. He said he had been requested by members of the Umhlazi community to eliminate Malinga who had become a problem. In the circumstances he regarded Malinga as a legitimate target. He kept him under surveillance and monitored his movements and associations. He then attacked him as set out above. Malinga was injured in the attack. He had been given notice as an interested party but declined to attend the hearing.
With regard to the bombings, the applicant testified that he had received instructions that he should ensure that there was activity during the 1988 Tricameral elections. He said that the majority of South Africans were opposed to the elections and he had hoped that by causing the explosions in the centres of Durban and Pinetown respectively the ANC would receive maximum propaganda effect from them and make such opposition known. The choice of CNA appears to have been purely coincidental and related to location as the applicant had no specific motive to attack that business.
He instructed Dube to bomb the Pinetown branch of CNA and Chamane to bomb the Durban branch. They were to place "low power" explosives in the stores, as late as possible prior to closing time, with a view to avoiding or at least minimising casualties. It appears that Dube and Chamane either disobeyed or were careless about their instructions as the devices exploded at approximately 12h30 and 15h05 on a Friday. Kunene accepted that this was not what he had told them to do.
Mr. Mike Blake a person who had been injured in the Pinetown blast attended the hearing. He submitted an article and was represented by the evidence leader. He accepted the applicant’s explanations and did not oppose the application.
It is clear to us that the applicant acted in his capacity as a member of MK. His actions as aforesaid were in line with the policies and guidelines of the ANC at the time. He appreciated that as a consequence of his actions, Malinga or innocent civilians might be killed or injured and property damaged. We are satisfied that he committed such acts during the course of the conflicts of the past and that such acts are acts associated with a political objective as required by the Act. We are also satisfied that he has made full disclosure all relevant facts.
In the result, we are satisfied that the applicant has complied with the requirements of the Act and he is GRANTED amnesty for all acts, omissions or offences flowing from the following instances:
1. The smuggling of firearms and handgrenades into South Africa and giving these to three unit commanders, viz., "Themba" aka Fakazi, Thokalethe Sulimane Chamane and "Shawn" Dube, during the period 1988 to 1990, at Umhlazi ad Claremont in the vicinity of Greater Durban.
2. The throwing of an F1 defensive grenade through the window of a house in Z section Umhlazi, in an attempt to kill one Nkanyiso Malinga and two other members of the KwaZulu Police ("KZP") on 11 June 1990.
3. The ordering of two explosions both on 7 October 1988 at two branches of CNA, the one at 320 West Street, Durban and the other at 14 Pine City, Hill Street, Pinetown.
The following persons who were injured are found to be victims and are accordingly referred to the Reparation and Rehabilitation Committee in terms of Section 22 (1) of the Act:
Mr. Nkanyiso Malinga
Mr. Mike Blake.
SIGNED AT CAPE TOWN ON THIS ______DAY OF
______2000.
______
JUDGE A B M WILSON
______
MR J B SIBANYONI
______
MR I LAX AC/2000/160
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.
MUSA MAHAMBANE APPLICANT
(AM 6174/97)
DECISION
The applicant makes application for amnesty in terms of Act 34 of 1995 as amended (the Act).
The applicant testified that in 1985 he became interested in the politics of the day. As a result, he attended meetings of an organisation in KwaMashu where he lived, where raising funds to buy firearms and ammunition and other matters were discussed. he was also taught briefly how to use a firearm. These meetings carried on for about (6) six years and in the late 1990, the applicant's leader, one Mandla, called him aside after one of these meetings, and told him that he had to go and rob a bank, to obtain the funds to buy arms. He was told to obtain the assistance of two others because Mandla did not trust anyone else in the meeting.
The applicant testified that he obtained the assistance of two common criminals and a driver. he said they left from Mandla's home to the bank. There was a confrontation outside the bank after the robbery was completed. A gun-battle ensued between the applicant and his friends and the local protection unit. Some people were injured as a result and one person was killed. He was subsequently charged with murder together with a number of other offences. He was convicted of these and sentenced accordingly.
The applicant was an unimpressive witness. He tended to misunderstand simple questions especially when placed in an awkward situation.
He did not explain the situation to his accomplices, common criminals, who would participate only for the love of money, that the reason for the robbery was for the benefit of his organisation. He also did not prepare a strategy as to how he would deal with them when they realised the money would not be shared. This is very improbable.
Furthermore he stated that there was no intention to kill anyone and did not foresee it. Yet, they all went to the bank heavily armed. It is improbable that he did not at least foresee that somebody could be shot and killed.
It is uncertain as to whether these offences were committed for political reasons. Furthermore, the committee is not satisfied that the applicant has told us everything there is to be said of this incident. He has therefore not made full disclosure of all the facts related to this incident.
Consequently, the applicant has not complied with the requirements of the Act. In the result, his application of amnesty in respect of all the offences flowing from the incident is REFUSED.
SIGNED THIS THE DAY OF 2000.
R PILLAY, J
D POTGIETER, A.J.
MR I. LAX AC/2000/161
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.
DANNYBOY NYATHIKAZI APPLICANT
(AM 1106/96)
DECISION
The applicant makes application for amnesty in terms of Act 34 of 1995 as amended (the Act) in respect of the murder of Zwelibanzi Ntuli (the deceased).
The applicant testified that he was campaigning for the African National Congress (ANC) before the General Election in April 1994. The deceased and others accosted him and his colleague at Road 8, Chesterville, Durban. The deceased and the others were known political opponents.
The applicant and his colleague ran away and were being shot at. They left behind the pamphlets and a motor cycle. A while later, he returned to Road 8 in order to recover the pamphlets and the motorcycle. On his way there he met Xolani Muntu Mkhize and Robert Mngadi. They accompanied him to Road 8 but could find neither the pamphlets nor the motorcycle. They then proceeded along Road 13 en route to Road 18. In Road 13, Mkhize's girlfriend indicated the presence of some people including the deceased. Mkhize then went to them and shot the deceased who died as a result. The applicant testified that he associated himself with the killing on the basis that it was committed on a political basis.
However, it transpired that Mkhize killed the deceased for some personal reason unrelated to any political motive.
The applicant testified that he had no intention of killing the deceased at that time and did not even know that Mkhize intended killing the deceased. Indeed, he did not even know that Mkhize wanted to harm the deceased. It follows there fore that even if the applicant associated himself with the killing of the deceased, it could not have been in furtherance of a political objective.
The committee is not satisfied, in the circumstances, that the applicant's contribution to the death of the deceased, if any, was politically motivated. He has consequently not complied with the requirements of the Act.
In the result, his application for amnesty in respect of the murder of Zwelibanzi Ntuli is REFUSED.
SIGNED THIS THE DAY OF 2000.
R. PILLAY, J
D. POTGIETER, A.J.
MR I. LAX AC/2000/162
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.
AARON ZIBUSE ZULU APPLICANT
(AM 2186/96)
DECISION
The applicant is applying for amnesty in respect of the following offences committed on the Mpumalanga/Maqongqo Road round about 7h20 on 2 March 1993:-
1. The murder of Nduda Mkhize aged 13;
2. the murder of Thulani Mkhize aged 19;
3. the murder of Thule Mkhize aged 9;
4. the murder of Wanda Ngubane, aged 12;
5. the murder Nomusa Gwala aged 12;
6. the murder of Ngee Mkhize aged 10;
7. the attempted murder of 15 other school children;
8. and the attempted murder of the driver of a cream white bakkie with a white canopy, Mr Makeke and/or Mr Ngobane.
The applicant testified that he was a member of the ANC living at Maqongqo, commonly known as Table Mountain. He joined the ANC in 1987 and was involved in numerous attacks and counter attacks during the period 1987 to 1993 in the ongoing war between the IFP and the ANC.
During an attack by the IFP on the ANC on 26 February 1993 several ANC members were injured and Joseph Mlambo, Johannes Bengu and Themba Ngwenya were killed. That led to a discussion by 20 members of the ANC on the evening of the 1st of March 1993 where a counter attack was discussed. This gathering was attended by inter alia Nkosenye Majola, the applicant himself, Kumbu Shangase, Sishe Madlala and Saul Mkhize. Majola took charge of the gathering. They discussed the situation and decided that they should look for a certain Makeke, one of the IFP leaders who was travelling in a cream-white bakkie with a white canopy. They should wait in a bush along the road and as the vehicle approach "they would come out and stand quite near to it and shoot at it". They knew his vehicle. The people assembled only discussed the plan but did not decide who was to execute the plan. The applicant and his co-perpetrators after the meeting decided they would carry out the plan.
He testified that this was not a meeting called by anybody. They happened to be present because at the time they were residing as a group in the mountains. The fact that he stated in his affidavit that they were deployed to carry out the attack might have created a wrong impression. The four of them decided on their own after the meeting that they would carry out the ambush and they didn't report it to the gathering.
Applicant further testified that they knew that they (presumably Makeke and somebody else) used the road every day. On the morning of 2 March 1993 they dug out the concealed weapons, took two AK 47's, a V11 and .303 rifle and then proceeded to a steep hill and hid behind trees.
They saw a bakkie approaching, moved onto the road and the four of them fired simultaneously. They could not ascertain who was in the vehicle. He pointed out that the vehicle was approximately 15 to 20 metres away when they started firing and was still driving in their direction. The applicant himself fired towards the side of the vehicle while Saul Mkhize fired towards the front. The car was at that stage turning around a bend to the left and the side of the vehicle was facing the applicant and his colleagues. The road was about 8 metres wide and the vehicle came to a stop about 10 to 12 paces from where the applicant was standing. According to him, he didn't see the driver or anybody leaving the vehicle, neither did his colleagues because after the shooting which lasted for a minute or two, they immediately fled.
They didn't recognise the driver or any of the passengers. They knew Makeke quite well but didn't identify him or any of the passengers before they started shooting or there after. He never came across an incident where the IFP attacked children and he knew that members of the ANC were not to direct attacks on children. His intention was to destroy Makeke, the driver of the vehicle.
Later on, on being questioned the applicant said that Makeke didn't own a cream-white bakkie but was at times driving a cream-white bakkie owned by somebody who had recently come to stay in the area. Mr Makeke himself was the owner of a white bakkie. It was put to him that according to his affidavit a white bakkie had been identified by the meeting on 1 March 1993 as the object for attack because a white bakkie was seen during the preceding attack on 26 February 1993. The question was then asked why they attacked a cream-white bakkie, to which he replied that the bakkie was both white and cream-white. He further went on to say that they attacked the cream-white bakkie because Makeke was the driver. The fact is that the bakkie was driven by one Ngobane. In this respect it must be borne in mind that according to him he didn't identify anybody at the shooting. It is also significant that he didn't mention in his application that children were killed. He stated that 6 Inkatha members were killed. When it was put to him that this information was not correct he conceded it and replied:
"Yes, it was a mistake. The reason is because I heard that 6 members of IFP were killed. It was not so clear that it was 6 children of the IFP".
This is contrary to his earlier evidence that he first heard of the effects of their ambush over the radio the next day when it was announced that 6 children were fatally shot and injured.
"My heart bled when I heard that innocent children had been killed, including those of my brother".
The victims opposed the amnesty. Mr Mkhize, the father of three of the deceased and Mr Khuala who was at the time a 13 years old scholar, testified that this particular vehicle was owned by Nkosi and was driven by Mr Ngobane and took children to the school daily. It speaks for itself that a vehicle daily carrying school children would travel at regular times and on regular routes. It would have been very easy to ascertain this if any reconnoitring had been done instead of reckless firing at any vehicle resembling the one they were supposed to ambush. It is inexplicable how they weren't able to recognise the driver from a distance of 20 yards driving right past them and stopping within 10 yards from them. It is even more inexplicable that whilst four of the children were shot in the road that the applicant could still aver that they were not aware that the victims were children. It was suggested that that may be so because he fled and it might have been that one of his co-perpetrators stayed a while longer and could have shot them. It is highly improbable that this co- perpetrator wouldn't have informed the applicant of their mistake at the time when all four of them were listening to the radio announcing the slaughter.
For the purposes of this decision it is not necessary to deal with the evidence of the young victim Khuala in so far as the identification of one of the attackers is concerned. The fact is that he fell into a coma after the man who confronted him, fired four bullets into his body, from close range. No doubt that man must have been aware that they attacked children and it is improbable that he wouldn't have mentioned it to his co-perpetrators when they re-assembled.
In the result the Committee is not satisfied that a full disclosure of all the relevant facts have been made. Even if the wrong vehicle was mistakenly targeted we find it highly improbable that the applicant didn't realise that children were killed while he was still on or near the scene. It is also improbable that they wouldn't have realised that the driver wasn't Makeke if in fact they directed fire at the driver as the identified target, at such a close distance.
The application is therefore REFUSED.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000.
JUDGE S. KHAMPEPE
ADV. C. DE JAGER
MR W. MALAN AC/2000/163
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.
KIMPANI PETER MOGAI APPLICANT
(AM 3749/96)
DECISION
The applicant applied for amnesty in respect of the following offences:-
1. The assault with the intent to do grievous bodily harm on Jerome Joseph Maake at Tzaneen; on 13 September 1982;
2. Perjury in an attempt to defeat the ends of justice in the criminal trial resulting from the above assault;
3. Any other offence or delict directly linked to the above assault and flowing therefrom;
4. Any offence or delict directly linked and flowing from the kidnapping, detention and interrogation of Selby Mavuso, also known as MK Bab, at or near Zeerust during 1981.
The applicant testified that he went into exile during 1977 whereafter he joined the African National Congress ("ANC") in Botswana. As a result of his dissatisfaction with conditions in the ANC camps, he became disillusioned with the ANC and returned to the Republic of South Africa ("RSA"). After his return he was recruited by the South African Police ("SAP") and became an Askari.
While he was on duty in the Tzaneen area, he was ordered by Captain Johannes Stephanus Vermeulen, commander of the Vlakplaas Unit to which the applicant belonged, to assist in the interrogation of a man who was arrested near Tzaneen and whom they suspected to be an MK soldier. This man proved to be Jerome Joseph Maake. The applicant confronted Maake with the allegations against him. He denied being a MK soldier and any involvement in activities against the government. Vermeulen was not satisfied with the answers and started assaulting the detainee. The applicant, Warrant Officer Andrew Letsatsi and Constable Ephraim Mfalapitsa joined him in assaulting the victim. According to the applicant, Maake was severely assaulted.
The objective was to compel him to give information about MK activities in the area because they did not accept that he knew nothing about the then ongoing operations of MK. Notwithstanding the assaults no information was forthcoming from Mr Maake.
The Commander of the Security branch at Tzaneen, J.J.L. Badenhorst, learnt of the assaults and ordered an investigation. The result was that the four perpetrators were prosecuted. Vermeulen advised them to deny all allegations against them and at the end of the trial they were found not guilty.
The second incident in respect of which amnesty is sought, relates to an attempt to recruit MK Bab (Mr Selby Mavuso) to join the SAP and to become an Askari.
The applicant testified that MK Bab was brought to Vlakplaas after he had been kidnapped in Mozambique. The applicant did not partake in the kidnapping and only met MK Bab after he had been brought to the Western Transvaal where the applicant had been on duty at the time. The detainee was hand-cuffed and was placed under the supervision of the applicant. According to the applicant, he knew Mr Mavuso well. They were trained together in Angola and used to be friends. The applicant guarded Mr Mavuso for about a week and a half and was instructed to persuade him to join the SAP and to become involved in the struggle against his fellow ANC colleagues. Notwithstanding all efforts, Mavuso refused to become an askari. According to the applicant he saw no evidence of any assault on Mavuso and no such assaults occurred during the 10 days while he was under his supervision. He constantly guarded the detainee who slept in the same room with him.
Approximately after ten days he informed Vermeulen, that he was unsuccessful in recruiting Mavuso. Vermeulen thereupon took Mavuso with him. He has not seen Mavuso since but recently heard that his body was amongst others exhumed near Rustenburg.
It was submitted that although the applicant did not commit any direct crime against Mr Mavuso he associated himself with the unlawful detention of Mr Mavuso after he had learnt that he was kidnapped and abducted from Mozambique.
The Committee is satisfied that the applicant has made a full disclosure of all relevant facts, that the offences were associated with a political objective and flowed from the conflicts of the past.
Amnesty is GRANTED in respect of the following offences:-
1. The assault with the intent to do grievous bodily harm on Jerome Joseph Maake on 13 September 1982 at Tzaneen;
2. Perjury in an attempt to defeat the ends of justice in the criminal trial resulting from the above assault;
3. Any other offence or delict directly linked to the above assault and flowing therefrom;
4. Any offence or delict directly linked and flowing from the kidnapping, detention and interrogation of Selby Mavuso, also known as MK Bab, at or near Zeerust during 1981.
The Committee recommends that Mr Jerome Joseph Maake and the next of kin of Mr Selby Mavuso should be regarded as victims in terms of Act 34 of 1995 and forward their names in terms of Section 22 of the aforesaid Act to the Committee on Rehabilitation and Reparation.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000.
JUDGE S MILLER
C. DE JAGER (AJ)
ADV. S. SIGODI AC/2000/164
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.
KOBUS KLOPPER APPLICANT
(AM 3762/96)
DECISION
The applicant applied for amnesty in respect of any offence and/or delict flowing from, and directly linked to, the arrest detention and prosecution of Mzwake Mbuli and his wife Mrs Nomsa Mbuli in connection with so called illegal possession of firearms and/or explosives at 4437 Pimville on the 17 March 1989.
The applicant testified that he was instructed by Major Abraham Grobbelaar to plant handgrenades in the room where Mr Mzwakhe Mbuli stayed. The order was given to him as well as Captain du Toit and Warrant officer van Tonder. About ten members of the security police were involved in the operation to search the house of the Mbuli's for illegal weapons. They were under the command of captain du Toit.
According to the applicant two handgrenades were planted in a cupboard in the bedroom while the so-called search was in progress. He can not remember whether he in fact planted one of them. After the grenades were planted, they were discovered by one of the other members of the task force and the occupants of the bedroom, Mr and Mrs Mbuli, were then arrested and later prosecuted. After a long ordeal they were found not guilty and discharged.
The applicant is the only member of the security police involved asking for amnesty. Warrant officer van Tonder is deceased and Grobbelaar and du Toit filed affidavits denying any involvement in the incident.
Mr Mbuli and his daughter attended the hearing. Their daughter was only seven years old at the time of the incident and was present in the house. On the arrest of her parents she was taken to neighbours who cared for her during her parents' absence.
Mr Mbuli is a renowned pet, musician and singer. He was actively supporting the liberation movements at the time. This led to his detention on several occasions under the security lands. He was described as a thorn in the flesh of the security police. The political objective, according to the applicant was to remove him from the society in order to neutralised his political influence.
Mr Mbuli regretted the fact that the applicant was the only perpetration coming forward to testify about the injustice perpetrated against him. He, however, did not oppose the application.
Having heard the evidence and studied the documentation made available the committee is satisfied that the requirements of Act 34 of 1995 for the granting of amnesty have been met.
Accordingly amnesty is GRANTED to the applicant in respect of any offence or delict.
The committee is of opinion that Mr Mzwakhe Mbuli, his wife Mrs Nomsa Mbuli and their daughter should be considered to be victims in terms of act 34 of 1995. A recommendation in terms of section 22 of the aforesaid act is made.
SIGNED ON THE DAY OF 2000.
JUDGE S MILLER
JUDGE C. DE JAGER
ADV. S. SIGODI AC/2000/166
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.
PAUL RAMOSETLHA RAMMUSI APPLICANT
(AM 5488/97)
DECISION
The Applicant, a former commander of Umkhonto weSizwe, applies for amnesty in respect of a shoot-out at or near Springs in 1987 between him and his comrades on the one side and the police on the other. He also applies for amnesty for a hand grenade attack on the house of a policeman in White City, KwaThema on the same day. An unknown bystander was killed during the first incident and a policeman, a certain Inspector Ludick, and his father, a civilian, were wounded.
The policeman mentioned in the second incident, one Sealogo has since passed away but his next-of-kin and son Mr Abel Sealogo were notified but were unable to attend the hearing. The application was not opposed by the victims. The comrades of the Applicant who participated in the first incident also attended the hearing. They had previously been arrested and convicted for offences flowing from the first incident but had been granted indemnity in terms of relevant legislation. The Applicant was never arrested or charged for any of the incidents and came forward out of his own free will.
The Applicant testified extensively and gave a full overview of his training as an MK soldier in Angola. He returned to South Africa in 1987 on the instruction of his Commander, Simon Nkuna, to establish underground structures in the country.
On the night of the incident he and his comrades one "Wizz" Rantla and Mosa Nkuta were on a reconnaissance mission in a stolen vehicle. The police suspected the car to be a stolen vehicle and tried to stop them. They drove off and managed to get away and got out of the car at White City. The police shot at the rear window of their car and they returned fire after they got out. The wounded people were taken away. Applicant proceeded to the house of Mr Sealogo with a hand grenade which he threw into an empty room to avoid hurting elderly people who were in the house. His objective was to send a powerful political message to the police and apartheid government in doing so.
Within the context of the political struggle of the past, the Applicant at all material times clearly acted with a political objective and within the scope of his orders. The Committee is further satisfied that he has complied with all the formal requirements for amnesty in terms of section 20(1)(a) of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 and that he has made a full disclosure of all relevant facts.
Accordingly amnesty is GRANTED to PAUL RAMOSETHLA RAMMUSI:
1. for all offences and delicts flowing from or directly associated with a shoot-out with the police at or near Springs during 1987;
2. for all offences and delicts flowing from or directly associated with a hand grenade attack on the house of a policeman, one Sealogo in or near KwaThema, Springs sometime during 1987.
The following persons are referred to the Committee on Reparation and Rehabilitation in terms of section 22 of the Act for consideration as victims: 1. Mr Samuel Ludick (father), P.O. Box 13234, Riverfield, Springs;
2. Mr Samuel Ludick (son), P.O. Box 13234, Riverfield, Springs;
3. Mr Abel Sealogo, SAPS, North Rand, Kempton Park.
DATED AT CAPE TOWN THIS DAY OF 2000.
JUDGE DENZIL POTGIETER
ADV. FRANCIS BOSMAN
ADV. NTSIKI SANDI AC/2000/167
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.
THEMBINKOSI HENGE APPLICANT
(AM 6137/97)
DECISION
This is an application for amnesty in terms of section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act").
The applicant applies for offences flowing from an armed attack on a Translux Bus on 27 August 1993 at or near the Gamka River Bridge, Beaufort West. A number of victims had been traced and notified of the hearing. Mr. John Riley represented them at the hearing.
The applicant was the only person to testify in the application. He testified that at the relevant time he was a member of the Azanian People's Liberation Army ("APLA"), the military wing of the Pan Africanist Congress of Azania ("PAC"). He had received military training during April or May to June 1993 at Mvumelwano location, Qumbu, in the then Transkei. The training was a basic "crash course". He then returned to Beaufort West. At that time, his commander was one Sichumiso Nonxuba ("Nonxuba") who is now deceased. At some stage prior to the attack, he received orders from Nonxuba to attack a Translux bus that passed through Beaufort West on its way to Johannesburg. There were apparently two such buses and the applicant had to decide which of them to attack. He eventually chose the midnight bus as it entailed less possibility of detection and a better opportunity for retreat.
Having decided which bus to attack the applicant reported to Nonxuba. He was then ordered to collect firearms and ammunition at Ngangelizwe location at Umtata. He collected two R4 rifles and five loaded magazines and returned to Beaufort West. After approximately two weeks, he was informed that one "Mandla" (an alias) would be sent from Umtata to assist in the operation. He showed Mandla the layout of the area and briefed him about the plan for the attack. There is some doubt as to who Mandla is/was as this was a nom-de-guerre and the applicant does not know the true identity of Mandla.
The next day on 27 August 1993, the two of them attacked the bus at approximately midnight. Each fired a magazine at the bus. In total, approximately fifty shots were fired. They had intended shooting the driver so that the bus would crash off the bridge and into the river below. They fired at the front of the bus and missed the driver. Eight people were injured in the attack. All the occupants of the bus were traumatised and shocked by the incident.
Under cross-examination, the applicant conceded that he had previously been a supporter of the ANC, having become politicised at the age of ten. He said he decided to join the PAC because he preferred its policies and was not happy with the progress at the negotiation process. He expressed his regret at what had happened.
The incident in question took place at a time when most political parties were engaged in the negotiation process. However, as we have heard in a number of other matters the PAC had not yet abandoned the armed struggle. The applicant was a member of APLA and received order to attack the bus. The arms and ammunition used in the attack were supplied by APLA to the applicant and the orders emanated from Nonxuba who was at the time a member of APLA's high command. The applicant felt obliged to carry out the order which he saw as necessary to speed up the negotiation process and make whites understand that the PAC was serious about it's position. His actions as aforesaid were thus acts associated with a political objective as defined in the Act.
In weighing up the applicant's testimony we are satisfied that he has made full disclosure of all relevant facts, that he did not act out of personal malice or spite or for financial gain.
In the result, the applicant has complied with the requirements of the Act and he is accordingly GRANTED amnesty for all offences connected with or flowing from an armed attack on a Translux Bus on 27 August 1993 at or near the Gamka River Bridge, Beaufort West.
The committee is of the opinion that all the occupants of the bus are victims and they are accordingly referred to the Reparation and Rehabilitation Committee in terms of Section 22 (1) of the Act.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000.
JUDGE S MILLER
MR J.B. SIBANYONI
MR I. LAX AC/2000/168
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.
MPADI JOHANNES LEDWABA APPLICANT
(AM 3188/96)
DECISION
The application for amnesty in terms of the Promotion of National Unity and Reconciliation Act 34 of 1995 was considered by the Amnesty Committee.
The applicant applied for amnesty in respect of a charge of committing public violence on the 14th April 1993 at Magopong Township, Naboomspruit. He alleges that he was a supporter of the ANC and took part in a stay-away after the death of Chris Hani.
It transpired that the charge was scratched from the roll on the 31st October 1997. According to the court records, charges of rape, murder and assault with the intent to cause grievous bodily harm were investigated against the applicant.
Notwithstanding numerous letters addressed to the applicant, no response was received. Except for the offence of public violence mentioned above, no particulars of any other offences could be obtained.
The Committee GRANTS amnesty in respect of the offence of committing public violence on the 14th April 1993 at Mogopong Township, Naboomspruit.
Amnesty in respect of any other offence is REFUSED on the grounds that there was no full disclosure of the relevant facts.
DATED AT CAPE TOWN THIS DAY OF 2000.
AC/2000/169
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.
SGUBHU ABEL DUBE APPLICANT
(AM 6040/97)
DECISION
The applicant, a member of the PAC, applied for amnesty for being in unlawful possession of arms and ammunition on the 21st April 1982 near Saambou Bridge on the Limpopo Border.
He supplied information that he obtained the weapons from Andrew Moeti, the deputy Commander of APLA, then based at Gaborone. The weapons were destined to be used in the armed struggle against the RSA government. He was arrested soon after entering the RSA and was found in possession of an AK-47 and a 9mm luger pistol.
The Committee is satisfied that the offence was associated with a political objective and that the requirements for amnesty have been met.
Amnesty is GRANTED in respect of the illegal possession of an AK-47 and a 9mm luger pistol and ammunition during April 1982 at Saambou Bridge, district of Pietersburg.
SIGNED AT CAPE TOWN ON THIS DAY OF 2000.
AC/2000/170
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.
BILLY NAIR APPLICANT
(AM 5613/97)
DECISION
The above applicant was convicted on the 28th February 1964 on 15 counts of sabotage. He is now applying for amnesty for his personal involvement in a number of sabotage offences as well as for his involvement as Commander in instructing others to commit acts of sabotage.
He was a member of the ANC, MK, SACP, UDF, SACTU and NIC and served on the executive committees of a number of them. He was also a Commander of MK and issued commands in the Kwa-Zulu Natal.
On the evidence before the Committee, it is clear that his application complies with the requirements of Act 34 of 1995, that the acts and offences were associated with a political objective, that they were committed in the course of the conflicts of the past in accordance with the provisions of Section 20(2) and (3) of Act 34 of 1995, that they did not involve gross violations of human rights and that the applicant has made full disclosure of all the relevant facts.
Amnesty is accordingly GRANTED in respect of the following offences and/or delicts executed under the applicant's command and/or participation:
1. placing an explosive and/or inflammable substance or material (incendiary bomb) in a railway passenger coach on the 14th October 1962 between Durban and Verulam.
2. cutting the railway signal wires and/or signal cables at Georgedale on the 14th October 1962.
3. placing and igniting an incendiary bomb against the door of an office in Madalene Building, Durban on the 14th October 1962.
4. placing and igniting an incendiary bomb against the door of the Bantu Commissioner's office in Stanger Street, Durban, on the 14th October 1962.
5. placing an incendiary bomb at the Bantu Administration Office at Kwa-Mashu, Durban, on the 14th October 1962.
6. placing and igniting an incendiary bomb under the offices of the Superintendent of Kwa-Mashu, on the 14th October 1962.
7. affixing and detonating charges of dynamite to a pylon at New Germany on the 1st November 1962.
8. affixing and detonating charges of dynamite to a power transmission line pylon at Sarnia, on the 1st November 1962.
9. affixing and detonating charges of dynamite to a power transmission line pylon, at Montclair on the 1st November 1962.
10. affixing dynamite to a power transmission carrier and detonating it, between Cliffdale and Ntchongweni Station, on the 19th November 1962.
11. affixing and detonating charges of dynamite to a power transmission line carrier at Umlazi Bridge, on the 5th December 1962.
12. placing and detonating charges of dynamite at the offices of Mr Kajee at Alice Street, Durban on the 9th December 1962.
13. affixing and detonating charges of dynamite to the legs of a power transmission line pylon on both sides of the railway line between Cliffdale and Hammersdale, on the 9th December 1962.
14. placing and igniting an explosive and/or an inflammable substance (pipe-bomb) in the bedroom window of Charles Mbuthu at Kwa-Mashu, on the 12th December 1962.
15. placing and igniting a pipe bomb in the window of a room of W. Dhladhla at Kwa-Mashu on the 12th December 1962.
16. placing and igniting a pipe bomb in the window of a room of J L Msiwazi at Kwa-Mashu, on the 12th December 1962.
17. inserting and igniting a pipe bomb into the airmail letter box of the Main Post Office in West Street, Durban on the 23rd December 1962.
18. affixing a pipe bomb onto a communication cable, at Victoria Embankment, Durban on the 23rd December 1962.
19. affixing and detonating charges of dynamite to a railway line between Durban and Port Shepstone on the 8th January 1963.
20. placing a pipe bomb in the letter box of the Central Mercantile Corporation and/or Nickle Square Holdings (Pty) Ltd at Durban, on the 11th January 1963.
21. placing and detonating charges of dynamite in the telephone communication cable chamber at Montclair on the 13th January 1963.
22. placing charges of dynamite and/or other explosives and/or inflammable substances at the building of the Drakensburg Pers. Ltd. And igniting and/or detonating the said charge at Durban on the 18th January 1963.
23. sawing off three wooden telephone standards at Greenwood Park, Durban on the 20th January 1963.
24. placing a pipe bomb in a Durban Cooperation Beer Hall at the Point, Durban on the 10th February 1963.
25. affixing and detonating charges of dynamite to the railway lines and cables at Victoria Street Bridge, Durban on 21st March 1963.
26. preparing and throwing explosives and/or inflammable substances, igniting bombs on a moving passenger train near Duff's Road Station, at Durban on the 7th April 1963. 27. affixing and detonating charges of dynamite to a signal control box near the Duff's Road railway line, at Durban, 21st June 1963.
28. unlawfully possessing explosives: 2,500 feet of cordtex, 370 cartridges of dynamite, a quantity of fuse, and a quantity of potassium chloride, in or on various premises, in pursuance of a common purpose, during the same period.
SIGNED AT CAPE TOWN ON THIS DAY OF 2000. AC/2000/171
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.
ANDILE ARMSTRONG MNTU APPLICANT
(AM 2296/96)
DECISION
The applicant applied for amnesty in respect of the following offences:
1. committing public violence during April 1993 at Whittlesea, Zwelitsha.
2. malicious damage to property during April 1993 at Whittlesea.
The applicant stated that he was a supporter of the ANC and that the offences were committed in reaction to the death of Chris Hani and were associated with a political objective.
Unfortunately, the applicant could not be traced notwithstanding numerous attempts by the TRC investigators to obtain further detailed information. It seems that he was an awaiting trial prisoner who was released after filing his amnesty application.
Although more information would have been useful in coming to a conclusion, the Committee is satisfied after perusing the application and considering the nature of offences that they were associated with a political objective, that they did not involve gross violation of human rights, that sufficient facts have been disclosed and that the offences related to conflicts of the past.
Amnesty is GRANTED in respect of the following offences:
1. committing public violence during April 1993 at Whittlesea, Zwelitsha.
2. malicious damage to property during April 1993 at Whittlesea.
SIGNED AT CAPE TOWN ON THIS DAY OF 2000. AC/2000/172
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.
ENOCH MSEBENZI NHLAPO 1ST APPLICANT
(AM 6104/97)
JOSEPH HLAHANE 2ND APPLICANT
(AM 6095/97)
DECISION
Having considered the applications, amnesty is hereby GRANTED to the Applicants in respect of the unlawful possession of petrol bombs in contravention of Section 28(1) read with Sections 1, 27(1)(c) and 28(2) of Act 26 of 1956 on or about 7 October 1992 at or near Ratanda in the district of Heidelberg.
DATED AT CAPE TOWN THIS DAY OF 2000. AC/2000/173
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.
WILLEM HELM JOHANNES COETZEE 1ST APPLICANT
(AM 4122/96)
LODEWYK DE JAGER 2ND APPLICANT
(AM 4126/96)
ANTON PRETORIUS 3RD APPLICANT
(AM 4389/96)
IGNATIUS COETZEE 4TH APPLICANT
(AM 4119/96)
DECISION
The above Applicants apply for Amnesty for an arson attack on a side hall to the Administrative offices of Soyco in the Ipelegeng Community Centre.
A decision was taken, sanctioned by general Ignatius Coetzee, the 4th applicant to quell the activities of Soyco, whose members were, according to intelligence reports, involved in attacks on policemen, councillors, in arson and riots, in intimidation activities and in crash military training courses. They were joined by Special Forces operatives Naude and Robey and having prepared a mixture of petrol and diesel to set the offices of Soyco alight, drove to the Ipelegeng Centre in Soweto. The precise date could not be established but according to the applicants it was in the last 2 weeks of December, either 1986 or 1987.
After reconnaissance, they decided that it would be too risky to access the offices and then, after establishing that no individual was present, threw the firebomb through the window of the hall adjoining the Soyco offices. Investigation the next day showed that minimum damage was caused and although they regarded the operation as unsuccessful, they nevertheless later formed the opinion that Soyco did curtail their activities at the Community Centre.
The Committee is satisfied that the explosion and arson was associated with a political objective as envisaged in the Act and that the Applicants made a full disclosure of all relevant facts. Amnesty is GRANTED to all the applicants accordingly.
SIGNED AT CAPE TOWN THIS THE DAY OF 2000. AC/2000/174
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.
PETER FIHLI MBONGO APPLICANT
(AM 5489/97)
DECISION
The applicant was convicted of being in illegal possession of a firearm (an AK - 47) in Sebokeng during December 1984 and of committing public violence during the same period. He was sentenced to two and a half years imprisonment on each count. He was granted indemnity during 1993 - 1994.
This Committee is bound by the indemnity decision - see Section 48 (2) Act 34 of 1995. The Committee is satisfied that the applicant who was a supporter of the then banned ANC, committed the said offences, that he has made a full disclosure of the relevant facts and that the acts were associated with a political objective.
Amnesty is GRANTED for:
1. the illegal possession of an AK - 47 during December 1984 at Sebokeng.
2. committing public violence during 1984 at Sebokeng.
SIGNED AT CAPE TOWN ON THIS DAY OF 2000. AC/2000/175
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.
MFANELO DAN MATSHAYA 1ST APPLICANT
(AM 7016/97)
PUMLANI KUBUKELI 2ND APPLICANT
(AM 5180/97)
LUYANDA NTIKINCA 3RD APPLICANT
(AM 6658/97)
MLUNGISI NYEMBEZI 4TH APPLICANT
(AM 6624/97)
SOLOMZI THEOPHILUS NOMATSHIZOLO 5TH APPLICANT
(AM 6657/97)
LUZUKO SYDNEY MPIYAKHE 6TH APPLICANT
(AM 6656/97)
DECISION
The Applicants were members of the Military Wing ("MK") of the African National Congress ("ANC"). They were all active in the former Transkei area during the early 1990's. They all apply for amnesty in terms of Act 34 of 1995 as amended ("the Act") in respect of transgressions of Act 54 of 1982 committed during attacks on the police barracks at Kokstad and on the Kokstad and Maclear Police Stations.
It is well-known that the ANC, mainly through its military structures waged a fully-fledged war against the South African regime at the time.
In 1990, all the Applicants planned the destabilisation of government institutions in the Transkei area. Kokstad and Maclear were amongst the towns identified by them as towns in which such institutions would be attacked so as to destabilise the government control. They launched a grenade attack on the police barracks at Kokstad. The subsequent police report suggests that no injury or damage resulted from this attack.
A short while thereafter, all the Applicants were involved in two attacks on other state institutions. It was based on the same kind of plans as were devised for the attack on the police barracks at Kokstad.
They attacked the police station at Kokstad. On the same day they attacked the police station at Maclear. In both instances, the attacks took the form of launched limpet mines and the use of what is referred to as TNT. Again in both these incidents, there does not seem to have been any injury or substantial damage (if any) that was caused.
In our view all the attacks took place within the political atmosphere that existed in South Africa at the time and that the Applicants have disclosed all the necessary facts related to these attacks.
We are satisfied that they have all complied with the requirements of the Act and in the result, they are all GRANTED amnesty in respect of transgressions of Act 54 of 1982 committed during the incidents during which the police barracks at Kokstad was attacked and also during which the police stations at Kokstad and Maclear were attacked.
DATED AT CAPE TOWN THIS DAY OF 2000. AC/2000/176
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.
LENNY BOLO APPLICANT
(AM 2742/96)
DECISION
Having considered the application, amnesty is hereby GRANTED to the Applicant in respect of the offence of Arson of a school building committed on or about 17 August 1992 at or near Kei Road Location, Kei Road.
DATED AT CAPE TOWN THIS DAY OF AC/2000/177
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.
NORMAN YENGENI APPLICANT
(AM 7311/97)
DECISION
The applicant, Norman Yengeni, was a member of Umkhonto WeSizwe, the military wing of the ANC.
He left South Africa and went into exile in 1976, from 1977 to 1980 he underwent military training in Angola. He was posted to special operations in Maputo.
In 1980 he was infiltrated into South Africa as part of an MK unit with instructions to sabotage a Caltex Depot in the Cape Province. He was arrested on 26th October 1980 and was charged with offences relating to leaving the country illegally, undergoing military training, entering the country illegally and attempt to commit sabotage by trying to destroy a Caltex Depot in the Cape Province.
He was convicted in 1981 and sentenced to 10 years imprisonment which he served and was released in 1990.
The Committee is satisfied that the applicant has complied with all the requirements of the Act relating to the formalities, the act done being associated with a political objective and full disclosure.
In the result he is GRANTED amnesty for leaving the country without a passport, undergoing military training entering the country illegally and attempting to sabotage the Caltex Depot.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000.
JUDGE
MR. J.B. SIBANYONI AC/2000/178
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.
JOHANNES MUDIMU APPLICANT
(AM 5306/97)
DECISION
The applicant, Johannes Mudimu, was a member of Umkhonto WeSizwe, the military wing of the ANC. His position was that of an instructor and Youth Radio Programmes Co-ordinator as well as Ordinance Operative Commander of the Nchabeleng units in the then Northern Transvaal and central Transvaal.
He applies for amnesty for infiltrating hardware (weapons) and personnel (cadres) into South Africa to establish units of MK and carry out operations.
Amongst the weapons infiltrated were AK47s, Limpet Mines, Grenades RPG7s and leaflets. The weapons and personnel were destined to the Far North, Northern Transvaal, Tzaneen, Phalaborwa and Johannesburg.
To applicant's knowledge no person was injured or killed as a result of his activities. These units were established for future usage in overthrowing the then South African Government.
We are satisfied that the applicant complies with all the necessary requirements of the Act.
He is accordingly GRANTED amnesty for infiltrating weapons of war into the country and assisting trained MK cadres to enter the country illegally during the period 1986 to 1989.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000.
JUDGE
MR. J.B. SIBANYONI AC/2000/179
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.
KABELO CAGNEY LENGANE APPLICANT
(AM 7747/97)
DECISION
Having considered the application, amnesty is hereby GRANTED to Applicant in respect of all offences and delicts arising from his participation in the detention and/or interrogation on or about 1 August 1986 at or near Orlando East, Orlando West and Chiawelo in Soweto of the following persons:
1. Edwin Vuyani Nkomo;
2. Mbulelo Esau Mabena;
3. Msilane Ronel Sishange;
4. Oscar Amos Mhlangeni;
5. Simon Morris;
6. Sekano Avonly-Kgasi.
DATED AT CAPE TOWN THIS DAY OF 2000. AC/2000/180
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.
ROBERT LUCKY SIBEKO APPLICANT
(AM 7009/97)
DECISION
Having considered the application, amnesty is hereby GRANTED to the Applicant in respect of the unlawful possession of petrol bombs in contravention of Section 28(1) read with Sections 1, 27(1)(c) and 28(2) of Act 26 of 1956 on or about 7 October 1992 at or near Ratanda in the district of Heidelberg.
DATED AT CAPE TOWN THIS DAY OF 2000. AC/2000/181
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.
MBULELO DAVID YELANE APPLICANT
(AM 5919/97)
DECISION
This application for amnesty is linked to that of Ben Sepato Lehloo (AM 3360/96) inasmuch as both applicants seek amnesty in respect of the same incident, namely Public Violence committed on 8 August 1993 at Phatisma, Rustenburg. The house of Mr Jimmy Deswaye as well as the car of Mr George Matuse were attacked and damaged in the incident.
Amnesty was granted to Mr Lehloo for the reasons set out in the Committee's decision dated 2 October 1998. We are in agreement with that decision and are similarly satisfied that the incident constitutes an act associated with a political objective as envisaged in Section 20 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995.
Amnesty is accordingly GRANTED to Applicant in respect of Public Violence committed at Phatisma, Rustenburg on 8 August 1993.
DATED AT CAPE TOWN THIS DAY OF 2000. AC/2000/182
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.
ROBERT ZAMZOLO NOGUMLA APPLICANT
(AM 5647/97)
DECISION
The applicant, a former MK Commissar and Commander returned to South Africa in 1989 after a long period of military training in exile. He was deployed in the Broder/Transkei area. He now applies for amnesty for offences involving the unlawful possession of an unknown quantity of arms and ammunition during the period 1990 until 1993 and the supply thereof to a MK unit in Ciskei in 1992 and to the Natal region of the ANC in 1993.
After having considered the application of the applicant and all relevant material available to the Committee the Committee is satisfied that the applicant has complied with the requirements of the Promotion of National Unity and Reconciliation Act No. 34 of 1995, that all the acts applied for were acts committed with a political objective as defined in the Act and that the applicant has made a full disclosure of all relevant facts.
Accordingly amnesty is GRANTED to the applicant for:
1. The unlawful possession of arms and ammunition during or about October 1990 in the District of East London for which the applicant was tried, convicted and sentenced;
2. Any offence directly associated or flowing from the supply of unlawful arms and ammunition to a MK unit in Ciskei in or about 1992;
3. Any offence directly associated or flowing from the supply of unlawful arms and ammunition to the Natal Region of the ANC in or about 1993;
4. The unlawful possession of arms and ammunition in Qumbu in or about 1993.
DATED AT CAPE TOWN THIS DAY OF 2000. AC/2000/183
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.
TSHEDISO PETRUS MSHIWA APPLICANT
(AM 3728/96)
DECISION
Having considered the application, amnesty is hereby GRANTED to Applicant in respect of the unlawful possession of arms and ammunition on or about 19 November 1992 at or near Sharpeville, Gauteng.
DATED AT CAPE TOWN THIS DAY OF 2000. AC/2000/184
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.
MOLIFE MICHAEL SELEPE APPLICANT
(AM 7154/97)
DECISION
The applicant is seeking amnesty for the following crimes and offences:-
1. The attempted murder of unknown IFP members;
2. Malicious Damage to Property;
3. Unlawful possession of a 9mm pistol and ammunition; and
4. Any delict or offence flowing from an attack on an IFP "base" at Nkosi Street, Thokoza, during or about July 1993.
At the time of the commission of the acts referred to herein the applicant was a commander of the Slovo Section (East Rand) Self Defence Units (SDUs) of the African National Congress ("the ANC") which he joined in 1990.
Applicant was the only witness to testify at the hearing. It is not the first time that he appears before the Committee seeking amnesty. Previously, he appeared and was granted amnesty for his involvement in a number of operations which he carried out on behalf of the ANC. The present matter relates to an incident which took place at Thokoza during the violent conflict between supporters of the ANC and the Inkatha Freedom Party ("the IFP").
The applicant testified that on a certain day during July 1993 he and other SDU members became aware that a house belonging to Zeblom Mtshali at Nkosi Street was being used by IFP members as a base from which they launched attacks on ANC supporters and members of the community. The applicant ordered that the house be attacked. Indeed, at the appointed time he proceeded with members of his unit to launch the attack. On their arrival there he learnt that the gate was locked and whilst he was trying to open it members of the IFP who were inside the house were alerted. They opened fire from the inside and an intense exchange of fire ensued. Members of his unit returned fire. They were firing at the occupants of the house and giving cover to the applicant who had fallen into the yard when he jumped over the gate. The applicant says he was unable to shoot from this position. As a result of the volley of shots which took quite some time before it subsided the house was extensively damaged and windows were broken. But no person was killed or injured in the exchange of fire.
The applicant was arrested on the same day in the same vicinity and was charged with attempted murder and malicious damage to property. He was granted bail and released. At the time of his application the case had still not been proceeded with and criminal proceedings are now being suspended pending the outcome of his amnesty application. The applicant further testified that the aim of their attack on the house which they saw as an IFP base was to pre-empt any attack, otherwise they were going to be killed by the IFP members whom they believed had assembled there in preparation to launch an offensive. They also did not trust the police in the area because they openly sided with the IFP supporters and warlords. In this regard it is as well to mention that the Committee has previously received testimonies from various applicants who made the same assertion, namely that during the ANC-IFP conflict in various parts of the country, the police sided with the IFP. After considering the applicant's evidence and having regard to previous similar applications and the context within which these occurred, we are satisfied that the applicant committed an act(s) associated with a political objective. He has made a full disclosure of the relevant facts and has complied with the formal requirements of the Act. He is entitled to amnesty which is GRANTED for all the offences listed above.
SIGNED ON THIS THE DAY OF 2000.
ACTING JUDGE D. POTGIETER
ADV. F.J. BOSMAN
ADV. N. SANDI AC/2000/185
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.
MANDLA MTSHALI APPLICANT
(AM 7362/97)
DECISION
After having considered the application of the applicant and documentation in the file the Committee is satisfied that:-
(a) the applicant has complied with all the formal requirements of the Promotion of National Unity and Reconciliation Act 34 of 1995;
(b) the offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past; and
(c) the applicant has made a full disclosure of the relevant facts.
Accordingly the applicant is GRANTED amnesty for having been in possession of an unlicensed firearm namely an AK 47 rifle and an unknown number of rounds of ammunition in or near Thokoza, Gauteng during 1993.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000.
AC/2000/186
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.
FRANK SANDY BENNETTS APPLICANT
(AM 4059/96)
DECISION
The applicant applies for amnesty in respect of the following incidents.
1. Unlawful interrogation of members of the United Democratic Front; Assault with intent to do grievous bodily harm, assault, intimidation, unlawful detention and kidnapping of such members during the period 1985 - 1989.
2. The "necklacing" of an unknown male in the vicinity of Chesterville near Durban.
3. The murder of a member of the Pan Africanist Congress whose name is unknown to the applicant.
The applicant made his application by filing the prescribed application with an affidavit annexed to it and by submitting a further supplementary affidavit which was dated 18 May 2000. He also gave oral evidence at the hearing.
POLITICAL BACKGROUND
He testified that during July/August 1981, he was recruited by the South African Police from the South African Defence Force. He completed his training at the Police College in 1981.
In 1984 a Riot Unit was established and he was later transferred to the Riot Unit. The functions of the Riot Unit were focused in the Lamontville area and later in the Chesterville area. During the period 1985 he worked under the direct command of Warrant Officer Johan Kruger in the Riot Unit.
During this time i.e. between 1985 - 1989 the political violence escalated to such an extent that there was an actual civil war.
The applicant was seconded to the Security Branch of the South African Police in the period 1987 - 1988. His duties entailed following up on enquiries with regard to suspected members of the Liberation Movements who had left the Republic to undergo training outside the country.
AD FIRST INCIDENT
The applicant testified that it was during this period 1985 - 1989, whilst he served as a member of The Riot Unit, that he was involved in numerous unlawful acts, where individuals were unlawfully interrogated and assaulted by applying electric shocks to them and various other methods. These unlawful acts were done regularly and on some occasions between three to four times per week. Due to the frequency of such acts, he testified that he was unable to recall the specific events, or where they took place. As a result the applicant could not furnish the Committee with any details of victims who were interrogated, nor the dates, times and places of such interrogation.
Various statements were obtained by the Amnesty Committee from people who alleged that they had been interrogated and or harassed by the applicant from Chesterville location. The applicant could not recall any of the names of the people who had alleged that he had assaulted and or harassed them. he could also not recall their addresses. He however alleged that the incidents which they alleged may well have occurred and he was not in a position to dispute them. Some of the events accorded with the nature of events that transpired at that time. He however could not be specific and could not supply the Committee with any facts relating to any specific individual.
AD SECOND INCIDENT
The second incident took place during the period 1985 - 1989. The applicant testified that he was requested by his Commanding Officer Warrant Officer Kruger to accompany him to a house in Road 24, Chesterville.
An envelope intended for a particular person, was delivered to a female at this person's place of residence. Warrant Officer Kruger informed the applicant that there was a sum of money in the envelope which he thinks was R500.00 and that the intention was to frame this person as an informer.
The applicant did not see whether there was any money in the envelope nor was he acquainted with the person who was supposed to receive the same.
A few days later the applicant heard about the death of a person who had been necklaced near Road 18. Warrant Officer Kruger then informed him that the deceased person was in fact the same person to whom the envelope was delivered. A statement from a doctor Sandile Gwale was obtained from the victims. The deponent to this statement related an incident where one Bongani was attacked by a group of people. The people took Bongani out of his car saying that he was an informer. This Bongani was eventually burned in Road 18. He however denied any knowledge about an envelope containing R500.00. His mother who is now deceased, never mentioned having received any money.
The applicant could not remember the name of the person who had been necklaced, nor the date when this incident took place. He merely assumed that the person referred to as Bongani in Doctor Sandile Gwale's statement must be the person whom they intended to frame.
AD THIRD INCIDENT
The applicant testified that during the period 1991 - 1992 whilst he was a member of the Security Branch of the South African Police, he took part in an operation which resulted in the death of a person believed to be a member of the Pan Africanist Congress in Inanda.
On a date he could not recall, he was called to attend a meeting of the Reaction Unit at the Riot Unit, Durban. He arrived with a certain Sean Fourie who was also a member of the Security Branch. When they arrived, the meeting had just ended and had been attended by Warrant Officer Fivaz, Chris de Jager and Tony Fernandez. He was informed by Fivaz that an operation had been planned to eliminate a member of the Pan Africanist Congress. The reason why this person would have to be killed, was because he would be able to identify the "Askari" who had furnished Fivaz with information. According to the applicant the plans involved members of the Reaction Unit who would penetrate the building and who would shoot the occupant and make the scene appear as if he had endeavoured to resist arrest. The applicant's role was to supply a dud handgrenade which would be planted on the scene. He testified that Fernandez was aware that he had in his possession two handgrenades with no detonators or explosives in them which he had kept as mementos. Fernandez then requested him to be in attendance close to the scene with one of these handgrenades.
At the scene, Fernandez and chris de Jager entered the house and thereafter shots were fired. The applicant who was waiting some distance from the house then handed Fernandez the grenade when Fernandez came to collect it from him. Later he noticed a handgrenade which he assumes was the one he had supplied, placed on the floor next to the victim who had been fatally shot. He was not aware of what happened to the handgrenade thereafter. He could however not recall the details of the deceased nor could he remember the exact address of the premises where this incident took place.
Two of the implicated persons testified. The first person to testify was Mr Fivaz. He denied having been a member of the Security Branch. he was only there as an investigator. He was in charge of the desk which investigated the activities of the Pan Africanist Congress. He denied that he ever worked with the applicant. he denied that he was ever part of a plot to kill the PAC man. In fact, he wanted to have the man arrested as he wanted to obtain some information from him. he denied that Fernandez was present at the meeting where the arrest of this PAC man was planned. He could not recall seeing the applicant and Sean Fourie before or after the meeting. He also denied having ever requested the applicant to come to the meeting, or informed him of a conspiracy as alleged. He did not respect the applicant and infact had filed reports on a number of occasions about applicant's activities he disapproved of. He further testified that he believed that the PAC man was shot because he wanted to defend himself with a handgrenade. He was infact upset when he learned of the development and death of this individual.
The second implicated person to be called was Mr Fernandez. His testimony was that at the time he was a member of the Bomb squad which was also part of the Security Branch. He denied that he was ever part of a meeting where it was discussed that the PAC man ought to be arrested. He also denied that he ever requested the applicant to supply a dummy handgrenade. He said that this was completely absurd. He as the demolition expert, had access to the safe where all the exhibits as well as the explosives were kept.
Further he referred the Committee to photographs which were taken at the scene. He testified that the handgrenade which was shown in the photograph was a "live" one and not a dummy one as stated by the applicant because the detonator was still intact.
In order to be granted amnesty, the applicant must satisfy the Committee that:
(1) The application complies with the requirements of the Act.
(2) The Act, omission, or offence is an Act associated with a political objective.
(3) The applicant had made a full disclosure of all relevant facts.
With regard to the first and second incidents, the applicant has failed to provide the Committee with sufficient detail in order to be able to come to a conclusion. The applicant has thus failed to make a full disclosure of all the relevant facts pertaining to these incidents, as is required by the Act.
As regards the third incident, the version of the implicated persons is more probable. It is highly unlikely that a person who has access to explosives would ask someone to provide a "dummy" handgrenade. The implicated persons, and especially Fivaz, were good witnesses. The applicant was not. It is also ironical that as regards the first (set of) incidents where the applicant was the main perpetrator, he could not positively tender any information, where as with regard to the second and third incidents, where he had virtually no role except as claimed on the fringes, he had quite a clear recollection of all events.
Having considered the evidence before us, we are not satisfied that the applicant has made a full and truthful disclosure pertaining to any of these three incidents.
Accordingly amnesty is REFUSED for all incidents the applicant applied for.
SIGNED ON THIS THE DAY OF 2000.
JUDGE A WILSON
ADV. S. SIGODI
MR W. MALAN AC/2000/187
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.
FRANCE THABO THAMAE APPLICANT
(AM 7717/97)
DECISION
Having considered the application amnesty is hereby GRANTED to the Applicant in respect of the unlawful possession of an AK47 assault rifle and ammunition during or about the period 1990 to 10 May 1994 as a member of the Self Defence Unit at Extension 2, Thokoza.
DATED AT CAPE TOWN THIS DAY OF 2000. AC/2000/188
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.
DIME MATTHEWS KEKANA APPLICANT
(AM 5885/97)
DECISION
The applicant applies for amnesty in respect of treason.
The applicant, at all relevant times, was a member of the African National Congress (the ANC) and Umkontho WeSizwe (MK).
During January 1986 the applicant was convicted of high treason and sentenced to undergo fourteen years of imprisonment. The overt acts resulting in the conviction were the military training he received abroad and the bombing of a railway line at or near Dube during 1982. The bombing of the railway line caused no loss of life or injury and was aimed at disrupting normal rail traffic.
It is evident from the documentation before us that the offences committed by the applicant were acts associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of Section 20 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995.
Applicant is GRANTED amnesty in respect of treason for which he was convicted to 14 years imprisonment by the then Supreme Court of Sourth Witwatersrand Local Division, on 31 January 1986.
Signed in CAPE TOWN this the 6th Day of November 2000
______
______
______AC/2000/189
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.
LUNGISA NOMBE APPLICANT
(AM 7274/97)
DECISION
This is an application for amnesty in terms of Section 19 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act").
At the time of the commission of the offences for which amnesty is sought, the Applicant was an officer in Umkhonto weSizwe ("MK") and a member of the African National Congress ("ANC").
He actively participated in MK operations and is seeking amnesty for the following incidents which took place during the period 1984 to 1986:
(a) Transporting personnel i.e. MK cadres from Lesotho to Umtata;
(b) Transporting weaponry from Lesotho and Sterkspruit to Umtata;
(c) Causing damage to property through destroying the fuel depot in Umtata. (The Applicant did not physically participate in this incident. However, operatives transported by him attacked the depot.)
In all his duties as a carrier of personnel and weaponry, the Applicant was working under the command of the now deceased Mazizi "Mpilo" Maqhekeza who was based both in Umtata and Lesotho.
Having considered the application and the document accompanying it, the Committee is satisfied that the application complies with the requirements of the Act in all material respects.
WHEREFORE the Applicant is GRANTED amnesty for:
(a) Transporting personnel (MK cadres) from Lesotho to Umtata during 1984 to 1986;
(b) Transporting weaponry from Lesotho and Sterkspruit to Umtata during 1984 to 1986; and
(c) The destruction of a fuel depot by MK cadres in Umtata on 25 June 1985.
DATED AT CAPE TOWN THIS DAY OF 2000.
AC/2000/190
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.
ROBERT DUMISANI DLAMINI APPLICANT
(AM 7136/97)
DECISION
The Applicant, Robert Dumisani Dlamini, applies for amnesty in respect of arson by burning house 933 Kubheka Street, Thokoza.
In his application, the Applicant states that, at the time of the commission of the offence, he resided at Phenduka Section, Thokoza (otherwise known as Tambo/Slovo Section). He was a member of the Self-Defence Unit ("SDU") and an ordinary member of the African National Congress ("ANC"). There was a conflict between the SDU and members and supporters of the Inkatha Freedom Party ("IFP").
The house in question initially belonged to a Mr Nkosi but he deserted it because of violence and it was subsequently occupied by the IFP who used it as their base from where they launched attacks against the community. The late Thabo Sibeko, who was the commander of Tambo/Slovo section at the time, issued an order that the house should be burned. The Applicant participated in its burning.
The Committee is satisfied that the Applicant complies with the requirements of the Act. Therefore, he is GRANTED amnesty in respect of arson by burning house 933 Kubheka Street, Thokoza, Gauteng Province, during or about November/December 1993.
It is recommended that the owner of the house, Mr Nkosi, be declared a victim and he is hereby referred to the Reparation and Rehabilitation Committee for its recommendation in terms of Section 22 of the Act.
DATED AT CAPE TOWN THIS DAY OF 2000.
AC/2000/191
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.
JOHANNES SEKHALO NCALA APPLICANT
(AM 0115/96)
DECISION
Having considered the application as well as the evidence tendered at the amnesty hearing of Mandla Wellington Fokazi, AM 3119/96, in respect of the same incident, amnesty is hereby GRANTED to the Applicant in respect of the following offences committed on or about 2 April 1992 at or near Bethlehem:
1. Murder of Lourence Cornelius Oosthuizen;
2. Attempted murder in respect of:
2.1 Bruce Rutherford Collie;
2.2 Hermanus Johannes Joubert;
2.3 Abraham Christoffel Naude Coetzee;
2.4 Henry Sidney Chris Nortje;
3. Unlawful possession of a machine gun and ammunition;
4. Unlawful possession of two 9mm P38 pistols and ammunition.
DATED AT CAPE TOWN THIS DAY OF 2000.
AC/2000/192
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.
JOHANNES JACOBUS GELDENHUYS 1ST APPLICANT
(AM 5461/97)
ANDREAS JACOBUS LIEBENBERG 2ND APPLICANT
(AM 6352/97)
DECISION
Both Applicants filed applications for amnesty, duly completed in the prescribed form. The first Applicant was Chief of the Army from 1 November 1980 to 31 October 1985 and subsequently Chief of the SA Defence Force from 1 November 1985 to 31 October 1990. He applied for amnesty for assisting in the escape of Charles Sebe from prison in the Ciskei in 1986. Applicant states that he received an instruction from Mr P.W. Botha, then president and chairman of the State Security Council to arrange for the escape. Following the order he instructed General Joubert, head of Special Forces, to arrange fr the escape. This was duly done and Sebe was liberated. Charles Sebe was being detained and it was viewed that as an outspoken critic of communism and Marxism, it was necessary to have him liberated from prison. Mr P.W. Botha, who gave the order, was also as head of State ex officio supreme commander of the SA Defence Force. The Committee received applications for amnesty for their part in this mission from three other applications viz.:
CHRISTOFFEL PIERRE VAN DER WESTHUIZEN AM 6499/97
JOHANNES LODEWIKUS GRIEBENAUW AM 5182/97 and PHILLIP JACOBUS FOUCHE AM 6472/97 all of which were granted amnesty.
The Committee is satisfied that the first Applicant has made full disclosure of his involvement in assisting in the escape of Charles Sebe from prison in the Ciskei, that the act was in execution of an order and that it took place in the context of the political conflicts of the past.
The first Applicant is therefore GRANTED amnesty for assisting in the escape of Charles Sebe from a Ciskei prison in 1986.
The second Applicant was Chief of the Army since November 1985 and subsequently became Chief of the SA Defence Force on 1 November 1990, a position which he held until his retirement on 31 October 1993.
Both first and second Applicants state that they were advised not to apply for any cross-border operations perpetrated by members of the Defence Force. Both Applicants though apply for amnesty for any act committed by any of those persons under their command which may constitute an offence of which they have no present knowledge. None of the two Applicants discloses any act or omission which constitutes an offence or delict even in the slightest particulars. Their applications for amnesty insofar as they relate to acts by members of the Defence Force under their command and of which they had no knowledge or have made no disclosure is REFUSED.
DATED AT CAPE TOWN THIS DAY OF 2000. AC/2000/193
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.
MTHETHELELI ZEPHANIA MNCUBE 1ST APPLICANT
(AM 5889/97)
MZONDELELI EUCLID NONDULA 2ND APPLICANT
(AM 7275/97)
JABULANI SYDNEY MBULI 3RD APPLICANT
(AM 6046/97)
DECISION
Mr Wagener, the legal representative of Mr J. van Eck, a victim of a landmine incident in the Messina district, has made application for three persons to be subpoenaed to testify in this matter. The application is supported by Mr de Beer, who appears for Mr J. De Nysschen, also a victim, but is opposed by Mr Koopedi, who appears for the applicants, and Ms. Lulama, the evidence leader.
The persons asked to be subpoenaed are Messrs. J. Modise, the Commander of Umkhonto weSiswe (MK), L. Maloi, the Chief of Operations of MK and R. Kasrils, the Chief of Intelligence of MK.
The incidents which are the subject of this matter were landmine explosions which occurred on rural roads in the Messina district during the latter part of 1985. The explosions resulted in the deaths of a number of civilians.
The three applicants were all members of MK and were part of a twelve-man unit which was tasked to lay the landmines. The unit was split into two groups of six. Applicant Nondula was in the group commanded by one Agrippa and Applicants Mncube and Mbuli were in the group that was commanded by one Chili.
The applicants were not involved in the reconnaissance of the area where the mines were to be laid. Their only involvement in the incidents was to attend a briefing prior to infiltrating into the country and, once in the country, laying mines on roads. They did not select the places where the mines were layed. They layed the mines in execution of orders given to them by their commander.
The evidence of the persons requested to be subpoenaed is required to establish the policy behind the MK landmine campaign, the mandate given to the unit tasked to carry out the campaign, the extent and the quality of the reconnaissance carried out as well as other intelligence gathering and in particular, whether the group of which Applicant Nondula was a member carried out their mandate or went on a frolic of their own when they layed the mine on the road on the de Nysschens farm.
We are of the view that the evidence of the aforesaid persons wanted by Mr Wagener to testify in this matter will have no bearing on the applications of the applicants and is not necessary in order to arrive at a proper decision in these matters. This is so as all three applicants were so-called foot soldiers. They made no decisions themselves in regard to the laying of the landmines. They were personally unfamiliar with the area and they merely followed orders. Even if the evidence of the three aforesaid persons established that the laying of the mine on the de Nysschens farm was contrary to policy or instructions, such would be pertinent in respect of the applicants commanders and not the applicants.
The application to subpoena the said persons is accordingly REFUSED.
SIGNED AT CAPE TOWN THIS THE DAY OF 2000.
MILLER S J
ADVOCATE F J BOSMAN
MR J B SIBANYONI AC/2000/194
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.
CHRISTOPHER GABOUTLWETLWE MOSIANE APPLICANT
(AM 3768/96)
DECISION
The applicant was a former member of Umkhonto WeSizwe who later joined the Security Forces and became an Askari.
He applied for amnesty in respect of eight incidents. All the incidents have been heard by different panels except the two incidents this panel will be dealing with in this application. The applicant's attorney handed alist referring to the different incidents to the committee. The following incidents have been heard but decisions are still pending:
1. The kidnapping of Japie Maponya
2. The Witbank Petrol Bomb attack
3. The Nelspruit Petrol Bomb attack
4. The detention of Pat Mahlangu
5. The kidnapping of Bomber
6. A house raid in Mabopane and kidnapping.
The applicant is presently applying for amnesty in respect of the following two incidents:
1. The petrol bombing of the house of the late Mr Griffith Mxenge.
2. The petrol bombing of the house of a Trade Unionist in Umlazi.
Both incidents occurred during the same night around about 1985/1986. The applicant could not give an exact date.
The applicant testified that he was abducted by Security Policemen Deetlefts and Pienaar from Swaziland on 14 April 1984. During the abduction Deetlefts suggested that they should kill the applicant and dump his body in Swaziland but Pienaar insisted that he should be taken to Police Headquarters in Pretoria in accordance with their instructions. He was detained for approximately six months. The message he got was crystal clear to either "co-operate with the Security Police or simply disappear". He understood and knew this to mean that he would be killed unless he was willing to become an Askari and work against his former colleagues. At that stage the ANC were infiltrated by police agents and anybody returning to the ANC after being in Police detention was suspected of being a Police Agent and ran the risk of being detained in an ANC camp and sometimes even executed as a traitor. On being asked why he did not rejoin the ANC later after his release and when he had the opportunity to escape he referred to according to applicant "they beat the lights out of him and sent him back to the RSA to face the Security Police again". According to the applicant this convinced him that he had no choice: either co-operate with the police and stay alive or be killed by them or your own comrades.
After becoming an Askari he was sent on different missions under the command of a Security Police Officer. While being in Durban he was ordered by Major Andy Taylor to accompany Nicholas Dube, Mshengu Mavuso, Mike Lembede, Spyker Myeza and Mgabazi to petrol bomb two houses.
The reason given by Taylor for the operations were that the house of the late Mr Mxenge was used for secret meetings by members of the liberation forces and that the other house belonged to a trade unionist who himself played an active role in opposing the government.
He further testified that they threw petrol bombs which were given to them by Taylor at the Mxenge house and he saw that at least one of them exploded and must have caused damage to the house. He did not see any lights n the house and was not aware of anybody sustaining injuries. They immediately left the scene and drove to the house of the trade unionist some kilometres away. There they repeated the same operation. He heard somebody screaming and one of his colleagues fired a few shots in the direction of the house before they ran away and drove off.
During cross examination by the legal representative of the victims the applicant stated that he joined the police force out of necessity but that he did not share or support their political objectives. It was argued that because he still believed in the policy of the ANC and only participated because according to him he had no choice, he should not be entitled to amnesty.
The Committee had to decide whether his case falls within the ambit of the act.
His application complied with the formal requirements of the Act Section 20 (1) a of Act 34 of 1995.
The act or offence itself was an act associated with the political objective of destroying or damaging a meeting place of members of the liberation forces. It would also serve to send a message to them.
The Committee came to this conclusion because the act met the criteria laid down in Section 20 (3) (b) to (f). The criterium laid down in Section 20 (3) a was not met, namely the "motive of the person who committed the act". Whether an act was an act associated with a political objective must be decided with reference to all the criteria. The criteria are not prerequisites. It is not required by the act that each of the criteria to which reference should be had should be looked at in isolation. It is not required that the applicant's motive should be associated with a political objective - the requirement is that the act should be associated with a political objective. All the members of the police who acted under orders were not members or supporters of the National Party. Some might have been members of the opposition parties and the intention of the legislature clearly was not to exclude them from the privileges granted by the act. Once it is objectively concluded that the act was associated with a political objective after considering all the criteria in Section 20 (3) the committee would be obliged to grant amnesty to any applicant who has locus stand: in accordance with Section 20 (2) to apply for amnesty and if the requirements of Section 20 (1) (c) has been met namely a full disclosure of all relevant facts.
The applicant falls within the ambit of Sections 20 (2) (b) and (f). He believed thathe had no choice but to obey the orders. It fell within the course and scope of his duties and within the scope of his express or implied authority. In this respect the Committee refers to the decision Vlok and others AM4399/96 where the Committee dealt with the meaning of the phrase "in the course and scope of his or her duties and within the scope ofhis or her express or implied authority" and referred to relevant decisions of the Appellate Division. The Committee is satisfied that the applicant had reasonable grounds to believe that being a member of the Security Police (albeit against his will) he had to act on the orders of his superiors and he did so.
Amnesty is therefore GRANTED to the applicant in respect of the following offences and delicts:
1. Arson and the malicious damage to the property of Griffith Mxenge during 1985/1986 in Durban caused by a petrol bombs being thrown at the house.
2. Arson and the malicious damage to the house of an unknown trade unionist during the same night as the previous incident and also caused by the throwing of petrol bombs at the house.
3. Any offence or delict directly linked to the above mentioned offences and covered by the evidence given in connection therewith.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000.
JUDGE A. WILSON
C. DE JAGER (AJ)
ADV. S. SIGODI AC/2000/195
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.
SIPHIWE NYANDA 1ST APPLICANT
(AM 6231/97)
SOLLY ZACHARIA SHOKE 2ND APPLICANT
(AM 5303/97)
MALEKOLLE JOHANNES RASEGATLA 3RD APPLICANT
(AM 7164/97)
DECISION
Siphiwe Nyanda (the 1st Applicant), Solly Zacharia Shoke (the 2nd Applicant) and Malekolle Johannes Rasegatla (the 3rd Applicant) were all members of the African National Congress ("the ANC") and Umkhonto we Sizwe ("MK").
The 1st Applicant, during 1977, was appointed as a Commissar in the Transvaal Urban Machinery ("TUM") of MK. He became the Commander of the TUM during 1979. He was appointed Chief of Staff of the Transvaal Command of MK during 1983. He was part of the command structure of the Politico-Military Council during the period 1984 to 1985 and was, from 1986 to 1988, the chairperson of the Regional Politico-Military Council, stationed in Swaziland. He, during the period that he was a member of the Regional Politico-Military Council, also headed the Transvaal structures of the Military Committee. During the period 1990 to late 1992 he was attached to Military Headquarters as Deputy Chief of Staff. He thereafter became Chief of Staff, which position he held until 1994. He was a member of the National Executive Council of the ANC during the period 1990 to 1994.
The 1st Applicant when completing the application form for amnesty on 10 May 1997 applied for amnesty in respect of "Acts unknown to me unless stated otherwise by individuals, amnesty applicants". In the same form he described the nature and particulars of the acts or offences in respect of which he applied for amnesty as follows: "As declared in the ANC submissions (22 August 1996) operational documents (12 May 1997) and the Declaration attached hereto". He thereafter, after the cut-off date for the submission of amnesty applications submitted a document titled "Further Particulars" to the amnesty application in which he provided further particularity of the incidents for which he applies for amnesty. The further particulars were supplied in response to a request from the Amnesty Committee.
In the Further Particulars the 1st Applicant sets out a list of 37 operations which, to the best of his knowledge, were carried out by the TUM. He also provides a list of 6 operations which were carried out during the Cetshwayo landmine campaign. The Cetshwayo landmine campaign was dealt with by another Sub-Committee and is not subject to this decision.
The 1st Applicant explained, both in his testimony at the hearing of this matter and in the Further Particulars, that cadres of the TUM carried out operations in a covert manner and that they operated within given guidelines, the selection of the date, place and target of the operation being at their discretion within such guidelines. Communications between cadres operating on the ground and the command structure were erratic and not all operations were reported back to the command. The 1st Applicant extracted the aforesaid 37 operations from the list of MK operations which appears as Appendix Four to the Further Submissions and Responses by the ANC to Questions Raised by the Commission for Truth and Reconciliation dated 12 May 1997. It is apparent that not all of the 37 listed operations were carried out by the TUM. The operations listed as numbers 10 (the explosion at John Vorster Square on 5 March 1986), 13 (the limpet mine attack at the Department of Community Development in Johannesburg on 3 December 1983), 15 (the three explosions at Brakpan on 15 May 1985), 16 (the limpet mine attack at the Medical Centre, Johannesburg on 30 May 1985), 17 (the explosion at the Southern Cross Fund offices on 31 May 1985) and 34 (the limpet mine attack at Capital Park substation during 1981) were, according to evidence received at the amnesty hearing of Abboobaker Ismail and others, carried out by members of the Special Operations Unit of MK.
There are, in addition to the operations listed by 1st Applicant, other operations which are known to have been carried out by the TUM. These are the Johannesburg Magistrates Court bombing during 1987 (which was referred to by 1st Applicant in his Further Particulars), the attack on Uncle Tom's Administration offices during 1980 and the attempted sabotage at Watloo Petrol depot. The 1st Applicant testified that he was involved in the planning of the Johannesburg Magistrates Court bombing and that he gave the instruction for the operation to be proceeded with. The 2nd Applicant testified that he was personally involved in the attack on Uncle Tom's Administration offices and the attempted sabotage at the Watloo petrol depot in his capacity as a member of the TUM.
Mr Wagener, who appears for Mr D.J. Visagie, a victim of the Wonderboom Police Station bombing during 1981, which was one of the operations listed by the 1st Applicant as having been carried out by the TUM, has submitted that the 1st Applicant should not be granted amnesty in respect of any incident or operation. He contends that the information supplied by the 1st Applicant in his application form makes no reference at all to any specific incident and the further particulars provided by the 1st Applicant were tendered after the cut-off date for applications. The application in regard to specific incidents was, he submits, made too late and one therefore cannot have recourse to the provisions of section 19 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act") as the hurdle of section 18 has not been crossed.
Section 18(1) of the Act provides that "any person who wishes to apply for amnesty in respect of any act, omission or offence on the grounds that it is an act associated with a political objective, shall within 12 months from the date of the proclamation referred to in section 7(3), or such extended period as may be prescribed, submit such an application to the Commission in the prescribed form". We do not agree with the contention that the provisions of section 19 cannot be applied in the 1st Applicant's case because he failed to specify any particular acts or offences in his application form. Sections 19(1), (2) and (3)(a)(i) and (iii) provide as follows:
"19(1) Upon receipt of any application for amnesty, the Committee may return the application to the applicant and give such directions in respect of the completion and submission of the application as may be necessary or request the applicant to provide such further particulars as it may deem necessary.
19(2) The Committee shall investigate the application
and make such enquiries as it may deem
necessary.
19(3) After such investigation:
(a) The Committee may:
(i) inform the Applicant that the application, judged on the particulars or further particulars contained in the application as
provided by the applicant or revealed as a result of enquiries made by the Committee, if any, does not relate to an act associated with a political objective;...
(iii) decide whether the application, judged on the particulars referred to in subparagraph (i), and in such further submission, relates to such an act associated with a political objective."
It is, in our opinion, clear from these provisions of section 19 that the Committee is entitled to request further particulars from an applicant and then to consider the application after receipt of the further particulars. There is no provision in the Act that requires the further particulars to be supplied before the cut-off date and it was obviously not the intention of the legislature to have such a restriction - such a restriction would unfairly discriminate against applicants who submitted their application form on the cut-off date or shortly before the cut-off date when time would not allow for the submission of further particulars before the cut-off time.
Mr Wagener also referred us to the case of another of his clients, Brigadier Schoon, who applied for amnesty in respect of 18 incidents but bona fide did not apply for a particular incident in which he was involved either because he had forgotten about it or because his attorneys omitted to include it in his application. Application was then made on behalf of Brigadier Schoon for him to be included as an applicant when the applications of other applicants concerning the same incident were being heard. The application was refused and in its ruling the Committee hearing that matter stated, inter alia, the following:
"The application, in our view, is seeking leave for the applicant to be allowed to raise a matter which has not been raised at all in the original application. There is moreover, in our view, no basis or framework which has been established for entertaining the incident in the original application. In fact there has simply been no reference to the incident at all. In our view there is no legal provision entitling us to grant the application. It is in our view a necessary result of failing to submit an application for amnesty in respect of a specific offence or delict in the stipulated time period that the matter cannot subsequently be considered by the Amnesty Committee".
We, with respect, do not agree entirely with the views expressed in he last sentence of the above quotation as we are of the opinion that a deficiency in the original application can be cured after the stipulated time period by the provision of further particulars. We are also of the view that the 1st Applicant's matter is distinguishable from Brigadier Schoon's matter. In the Further Particulars supplied by the 1st Applicant he, after explaining the inherent communication problems that existed between himself and the operatives who were carrying out the operations under his command, sets out a list of operations which he bona fide believes is complete. He, however, qualifies the list with the following statement:
"However, there does remain the possibility that other operations were carried out of which I am presently unaware, that may have resulted in injury to or even the death of person whose identities are entirely unknown to me. I respectfully stress that if there should be any such further incidents, the fact that such incident is not included in the schedules set out herein, is, solely because of possible shortcomings in my present level of information and not, in any way whatsoever, because of a wish on my part not to make disclosure thereof. I have no such wish. Should there be any amnesty application by another person, in which reference is made to myself as having been involved in any operation, I am willing to present myself and to answer questions with regard to my involvement."
By qualifying his application for amnesty in such a manner he has not, in our opinion, made an application for blanket amnesty. He only requests that consideration for amnesty be made in respect of incidents which are specifically identified and which include his involvement and which have not been included in his list for the reasons explained. Two such incidents are those of the attacks on Uncle Tom's Administration offices and the Watloo petrol depot. Both of those incidents are before us as they have been included in the 2nd Applicant's application for amnesty. The aforesaid caveat in the 1st Applicant's application pertinently caters for such a situation and, in the circumstances, we believe that it would be just and correct to include those incidents in his application.
We, after considering the evidence and documentation before us, accept that the incidents mentioned by the 1st Applicant in the Further Particulars, save for those referred to above which we know were carried out by Special Operations, were carried out by the TUM. In this regard, Mr Wagener submitted that the operations listed by 1st Applicant as numbers 11, 28 and 36 were also carried out by Special Operations. This is not so. The operation listed as number 11, the explosion at Military offices, Marshall Street, Johannesburg on 10 February 1983, was not carried out by Special Operations. Special Operations carried out an attack at the Old Defence Force offices in Marshall Street on 9 February 1985. Also, in regard to the operation listed as number 28, the attack at the Department of Internal Affairs in Marshall Street, Johannesburg on 12 August 1984, the attack carried out by Special Operations at the Department of Internal Affairs took place at Harrison Street, Johannesburg on 3 September 1984. In respect of the operation listed as number 36, the attack carried out at the Rosslyn substation, we have evidence before us that such an attack was carried out by the 2nd Applicant. The list of MK operations submitted to the TRC shows that two attacks were carried out at the Rosslyn substation during 1981. Special Operations carried out the attack which took place on 13 November 1981.
We are satisfied that all actions carried out by the 1st Applicant in his capacity as a commander of the TUM were carried out with a political objective as envisaged by section 20 of the Act. It is also our opinion that either or both criminal and delictual liability can be attached on the 1st Applicant in respect of all the operations which were carried out by members of the TUM under his command. Although he was not personally involved in the execution of such operations they were all carried out under his general order and instruction.
We are also satisfied that the 1st Applicant has, to the best of his ability, made a full disclosure of all relevant facts pertaining to his conduct as commander of the TUM.
We are accordingly of the view that the 1st Applicant is entitled to the grant of amnesty in respect of those operations which have been identified as having been carried out by the TUM.
The 2nd Applicant joined the ANC and MK during 1976. After receiving military training he was deployed to Mocambique as a member of the TUM. After a change in the structures during 1983 he became commander of the Transvaal Urban Unit, reporting to the 1st Applicant. He later was appointed as second in command under the 1st Applicant of the Transvaal structure of the Military Committee.
The 2nd Applicant was directly involved, as a combatant, in the following operations: (1) the bomb blast at Daveyton police station during 1978; (2) the attack on the Maroka police station during 1979; (3) the attack on the Orlando police station during 1979; (4) the attack on the Booysens police station during 1980; (5) the arson attack on Uncle Tom's Administration offices during 1980; (6) the attack on the Mabopane police station during or about 1981; (7) the explosion at the Rosslyn substation during 1981 and (8) the attempted sabotage at the Watloo petrol depot. He was also indirectly involved in the planning and facilitating of the bombing at the Johannesburg Magistrates' Court and the landmine campaign known as Operation Cetshwayo.
It is clear from the evidence that the 2nd Applicant at all material times acted in furtherance of the policies of the ANC and MK. We are satisfied that his participation in all the aforementioned operations was politically motivated. We are also satisfied that he had made a full disclosure as is required by the Act.
The 3rd Applicant, after joining the ANC and MK, received military training in Angola as well as the German Democratic Republic. He was a commander of a TUM unit and participated in the attacks on the Orlando police station during 1979 and the Booysens police station during 1980. We, like in the case of the other Applicants, are satisfied that he has given a full disclosure of all relevant facts and that his participation in the aforesaid operations was politically motivated.
We are accordingly satisfied that all the Applicants qualify for amnesty and:
1. Siphiwe Nyanda is GRANTED amnesty in respect of the following incidents:
1.1 the attack on the Booysens police station during 1980;
1.2 the attack on the Orlando police station during 1979;
1.3 the bomb explosion at the Germiston police station on 12 December 1977;
1.4 the bomb explosion at the Daveyton police station on 2 February 1978;
1.5 the limpet mine attack on a security branch member on 19 March 1985;
1.6 the limpet mine attack at the Braamfontein station on 10 April 1986;
1.7 the limpet mine attack at the De Deur substation on 22 February 1986;
1.8 the explosion at the Meyerspark Post Office on 24 April 1986;
1.9 a landmine attack on a SAP caspir vehicle in Mamelodi on or about 16 February 1986;
1.10 the explosion at an SADF building in Marshall Street on or about 10 February 1983;
1.11 an explosion on a railway line at Bosmont on or about 3 November 1983;
1.12 an explosion on railway lines at Dunswart and Apex during November 1977;
1.13 a hand grenade attack on a police patrol in Soweto on 6 December 1985;
1.14 a limpet mine attack on a police vehicle in Jabulani, Soweto, during 1989;
1.15 a hand grenade attack on a police parade at Katlehong during 1989;
1.16 two hand grenade attacks on policemen in Pretoria townships on 9 May 1985;
1.17 the attack on a police patrol in Katlehong on 22 June 1986;
1.18 an explosion at or near the Silverton police station on 10 July 1986;
1.19 a limpet mine explosion at the Mamelodi police station;
1.20 an attack on the Municipal police barracks in Soweto during February 1989;
1.21 a hand grenade attack on the Municipal police training centre during April 1987;
1.22 an explosion at Tshabalala's Dry Cleaners in Soweto on 7 August 1984;
1.23 an attack at the Department of Internal Affairs offices in Marshall Street, Johannesburg on 12 August 1984;
1.24 an attack on a policeman's house in Springs during 1986;
1.25 an attack on a policeman's house in Mamelodi during 1987; 1.26 a limpet mine explosion at the Springs railway station during 1986;
1.27 an explosion on a railway line near Phomolang railway station during 1983;
1.28 an attack on the Wonderboompoort police station on 26 December 1981;
1.29 an attack on the Mabopane police station during or about 1981;
1.30 an attack on the Maroka police station during 1979;
1.31 a limpet mine attack at the Rosslyn substation during or about 1981;
1.32 a car bomb explosion at the Johannesburg Magistrates' Court on 20 May 1987;
1.33 an arson attack on the Uncle Tom's Administration offices during 1980;
1.34 attempted sabotage at the Waterloo petrol depot.
2. Solly Zacharia Shoke is GRANTED amnesty in respect of:
2.1 the bomb explosion at the Daveyton police station on 2 February 1978;
2.2 the attack on the Moraka police station during 1979;
2.3 the attack on the Orlando police station during 1979;
2.4 the attack on the Booysens police station during 1980;
2.5 the arson attack on Uncle Tom's administration offices during 1980;
2.6 an attack on the Mabopane police station during or about 1981;
2.7 a limpet mine attack at the Rosslyn substation during or about 1981;
2.8 attempted sabotage at the Watloo petrol depot;
2.9 a car bomb explosion at the Johannesburg Magistrates' Court on 20 May 1987.
3. Malekolle Johannes Rasegatla is GRANTED amnesty in respect of:
3.1 the attack on the Booysens police station during 1980;
3.2 the attack on the Orlando police station during 1979.
We are of the opinion that the persons mentioned below are victims and this matter is referred to the Committee on Reparation and Rehabilitation for its consideration in terms of the Act:
1. The landmine attack on a SAP Caspir at Mamelodi on 16 February 1986: J.J. Bezuidenhout, M. Legoabe, L.D. Makgete, J.W.F. Makkink, M.G. Moatshe, E.W. Moore, W.A. Nel.
2. Explosion at Mamelodi police station: Madimetsa Abram Moatshe, Samuel Munsho Mogano.
3. Attack on Municipal police training centre during April 1987: Enoch Chiloane Dibakoane, Lucas Mandla Dube, Cyprian Mkhonbeni Khumalo, Christopher Mathebula, Simon Thembinkosi Ndawonde, Pieter Ngobeni. 4. Explosion at Tshabalala's Dry Cleaners on 7 August 1984: Lina Msimango.
5. Attack on Moroka police station during 1979: Daphney Magagula, Edward Moreni, Sam Nkosi (the son of Ernest Nkosi), Sam Sangweni, Brian Tembe (deceased), Godfrey Tshabalala.
6. Attack on the Wonderboompoort police station on 26 December 1981: S. Booysens, J.J. Malebe, R.J. Mngonyana, W.P. Nel, D.M. Nkosi (deceased), W.O. O'Reilly, D.J. Visagie.
7. Attack on Orlando police station during 1979: Thami Goodenough Dyantjies, Joseph Lekondeni, Amos Mashaba, Michael Msibi, Sipho Moses Zungu.
DATED AT CAPE TOWN THIS DAY OF 2000.
JUDGE S M MILLER
ACTING JUDGE N J MOTATA
MR J B SIBANYONI AC/2000/196
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.
THEMBA NONTLANTANE APPLICANT
(AM 6226/97)
DECISION
The applicant is presently an Eastern Cape Regional Organiser of the African National Congress ("the ANC") which he "officially" joined in Botswana in 1980. Until then he used to work underground as an ANC operative inside the country. In the 1980s he received military training in Angola and Cuba whereafter he was deployed in Zimbabwe to carry out activities on behalf of the South African Congress of Trade Unions ("SACTU"), the labour wing of the ANC. As a member of Mkhonto Wesizwe ("MK"), the ANC military wing he returned to the country in 1990 and was deployed in the then Northern Province. his commander was "Tebogo" whose full and further particulars are unknown to him. for security reasons, it was the practice in the ANC and MK not to use real names whilst they were in exile.
The application is for amnesty in respect of an attempted murder of "Stewart", a former member of MK who had defected to the South African Police ("SAP"). At the hearing the applicant was the only witness to testify and "Stewart", the askari, was not present as all attempts to establish his identity and present whereabouts were to no avail. The applicant testified that he does not know the full names and address of Stewart and only knew him as such. He had previously been warned by the late Mr Chris Hani to be careful of the erstwhile MK member as he was working for the police. He did not however authorise them to kill him. On a certain day in Johannesburg and whilst the applicant was in the company of Tebogo, where they had stopped at a fuel filling station, they saw Stewart driving a vehicle. They called him to come so they could speak with him. He ignored them and left. It was clear that he was avoiding them and that, indeed, he was working against the ANC and its members, particularly MK cadres. The applicant says they decided that they would have to kill Stewart because their lives were in danger. Stewart was now aware of their presence in the area and had observed the identity and registration numbers of their vehicle. He was going to convey this information to the Security police. They were not going to kill him themselves since he knew them. They were going to get someone else to carry out his killing.
Subsequent to this day Tebogo came along with a young man. he instructed the applicant to train him in the use of a Makarov pistol and a hand grenade. The applicant complied with the order and accordingly imparted the necessary skills to the young man. The training was conducted in a secret place. he was not given the full names and further details of the boy who was only known to Tebogo. Later, the applicant was told by Tebogo that the boy had attacked Stewart in Mamelodi with a pistol but could not kill him. He only sustained injuries. Although the applicant was arrested in January 1981 for other cases, he was never questioned about this particular incident and none of them, viz. himself, Tebogo and the boy were ever charged with the attempted murder of Stewart. He says the attack was necessary to prevent Stewart from pointing them out to members of the Security Police, and thus endanger their lives.
After considering the matter, the Committee is satisfied that the applicant and his comrades acted with a political objective as required in the Act. He further appears to have given a full disclosure and has complied with the formal requirements of the Act. He is therefore GRANTED amnesty for the following crimes:-
1. Conspiracy to murder an askari known only as Stewart and
2. Unlawful possession of a Makarov pistol and hand grenade.
It is being recommended to the Reparation and Rehabilitation Committee that the said Stewart, once his full and further particulars are known, be declared a victim in terms of the Act.
SIGNED ON THIS THE DAY OF 2000.
ACTING JUDGE D. POTGIETER
ADV. F.J. BOSMAN
ADV. N. SANDI AC/2000/197
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.
ZWELAKHE THANDINKOSI CEBEKHULU APPLICANT
(AM 4444/96)
DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). The matter relates to two incidents where Applicant was involved in the shooting and killing of two persons. The first incident relates to the killing of Johannes Dlamini in Commissioner Street, Johannesburg during or about 1985. The remaining incident concerns a shooting at the house of the Langa family situated at 1772 Manaka Street, Vosloorus on Sunday afternoon 8 October 1989 when Bidla Buthelezi was killed and Nonhlanhla Jane Mduli was shot and injured on her right cheek. Pursuant to the second incident Applicant and three co- accused were arraigned in the Witwatersrand Local Division of the Supreme Court during 1990 and convicted of a count of murder in respect of Bidla Buthelezi, a count of attempted murder in respect of Nonhlanhla Jane Mduli as well as the unlawful possession of arms and ammunition. Applicant was sentenced to life imprisonment in respect of the murder convictions and varying additional terms of imprisonment in respect of the other convictions.
Applicant was the only person to testify at the hearing in respect of the first incident. Both he and Alpheus Mandlakayise Langa testified in respect of the second incident. The facts concerning the incidents per se are common cause and will be summarised briefly.
MURDER OF JOHANNES DLAMINI
Applicant's uncle, Thosheleni Cebekhulu, was killed at Wattville, Germiston during March 1985. Applicant did not witness the killing but was subsequently informed that the perpetrators were members of the African National Congress ("ANC"). The alleged perpetrators were pointed out to Applicant at some point after the killing. According to Applicant he then decided on his own to avenge his uncle's murder. He also confirmed in the amnesty application form that he had no orders from any political organisation to do so.
A number of months after the killing, Applicant and his brother, Mbhekeseni Henry Cebekhulu, came across a group of people, including the deceased, in Commissioner Street, Johannesburg. The deceased was one of those people who were previously pointed out as the persons who killed Applicant's uncle. Applicant shot and killed the deceased. The identity of the deceased was unknown to Applicant, although he maintained that the deceased was an ANC member. Applicant was unable to offer a reasonable basis for his conclusion, save to point out that he saw the deceased in a meeting at a factory. he was unable to meaningfully respond to the fact that the ANC was a banned organisation in 1985 without any open structures or membership inside the country. Significantly, Applicant testified that he would not have killed the deceased if the latter had not been involved in the killing of Applicant's uncle.
Having carefully considered the matter, we are not satisfied that the incident is associated with a political objective. Although Applicant alleged in his testimony that his uncle was a member of the Inkatha Freedom Party ("IFP"), this was directly contradicted in an affidavit deposed to by his brother, Mbhekeseni, at Boksburg Prison on 8 September 1999 wherein he indicated that he was unaware if his uncle was affiliated to a specific political organisation. He also indicated that he was unaware whether his uncle's killers were affiliated to any political organisation. This supports the fact that in 1985 there would not have been any open members of the banned ANC as alleged by Applicant. As pointed out above, the Applicant testified that he decided on his own to take revenge, which was clearly the motivating factor in his attack upon the deceased. On Applicant's own admission, he was not acting on orders of and thus on behalf of any political organisation. We are therefore not satisfied that the killing of the deceased constitutes an act associated with a political objective.
ATTACK ON THE LANGA FAMILY
According to Applicant's version, a resident of the Vosloorus hostel, and IFP member Mcelelwa Sikhakhane, informed him that there were certain ANC members in Vosloorus who had to be attacked because Sikhakhane lost two relatives in a violent conflict. Applicant and a number of other persons thereupon went to the house in Vosloorus pointed out by Sikhakhane. They were all armed. Applicant and some other members of the group entered the house, while the rest of them remained outside to attack anyone escaping from the house. They met Alpheus Mandlakayise Langa inside the house. Applicant knew Langa from their home village, Nquthu in KwaZulu Natal. When Langa noticed the Applicant, he fled into one of the rooms. Applicant then shot and killed the deceased, Bidla Buthelezi, and wounded Nonhlanhla Jane Mduli. Both victims were unknown to Applicant. After the shooting the group fled and were later arrested.
Langa testified that he knew the Applicant as one of his neighbours at Nquthu in KwaZulu Natal. He also knows Sikhakhane as a fellow resident of Nquthu and was unaware of any attack upon Sikhakhane's relatives. He was not a member of any political organisation at the time and did not associate with the comrades. He was a member of the trade union, which was affiliated to the Congress of South African Trade Unions ("Cosatu"), at the cement factory where he was employed.
Sikhakhane was employed at a different firm. There was never any work-related conflict involving himself or Cosatu and Sikhakhane.
The only conflict Langa was aware of were faction fights which were taking place in Nquthu. These fights continued in Johannesburg where members of the contending groups were employed. Langa was informed about the fights in Nquthu when he telephoned his mother who was permanently residing there. Langa testified that those people from Nquthu who refused to become involved in the faction fighting wee often themselves targeted by the participants in the fights. He was one of those who refused to become involved and suspects that Applicant's group actually intended to attack him either because he was perceived as siding with their opponents or due to his refusal to join their side. He escaped the attack by securing himself inside one of the rooms. The persons who were attacked were completely innocent and had no links with Nquthu. The deceased was simply a friend who came to visit and Ms Mduli was a neighbour who happened to be at the Langa home at the time. Langa also indicated that he was unaware whether Sikhakhane belonged to any political organisation or whether Applicant was an IFP member.
In assessing the respective versions of Applicant and Langa, we are satisfied that Langa's evidence was truthful and credible. He has made an exceptionally favourable impression upon us. He answered all questions satisfactorily and did not show any animosity towards the Applicant. We accordingly accept his version without any hesitation. Applicant has not made the same favourable impression upon us. No credence can be attached to his testimony that he was never aware of any faction fights in Nquthu. He also failed to give any explanation for attaching weight to Sikhakhane's alleged statement that anyone present in the Langa house would be ANC members at a time when the ANC was still a banned organisation. He eventually conceded under cross-examination by the leader of evidence, Ms Mtanga, that the attack was directed at Langa and was based upon the faction fights in Nquthu. It is accordingly clear that the victims were totally innocent and were attacked for no adequate reason.
Having carefully considered the matter, we are satisfied that the attack upon the victims was in no way associated with any political objective. It follows that the incident therefore fails to comply with the requirements of section 20(2) and (3) of the Act.
In the result the application is REFUSED.
DATED AT CAPE TOWN THIS DAY OF 2000.
JUDGE DENZIL POTGIETER
ADV. N. SANDI
ADV. F. BOSMAN AC/2000/198
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.
THEMBA STEPHEN ZIMU 1ST APPLICANT
(AM 2806/96)
THULANI TERRENCE TSOTETSI 2ND APPLICANT
(AM 4400/96)
NICHOLAS ZWILE CHAMANE 3RD APPLICANT
(AM 0188/96)
MZWAKE SHADRACK KHUMALO 4TH APPLICANT
(AM 8041/97)
MBEKHISENI SOLOMON KHUMALO 5TH APPLICANT
(AM 8024/97)
DECISION
All the above-named persons applied for amnesty relating to a variety of incidents in the Thokoza/Springs area in the early nineties. The last mentioned applicants, Mzwake Khumalo and Mbekhisini Solomon Khumalo, who were also implicated by the other applicants, formally withdrew their applications at the start of the hearing.
The Applicants who will be referred to in the order stated above applied for amnesty for the offences and delicts set out below:
The first applicant, THEMBA STEPHEN ZIMU, applies for amnesty for his participation in a conspiracy to murder one Sam Ntuli which resulted in the death of Ntuli on 29 September 1991, the murder of Vusi Shabalala at or near Buthelezi Street, Thokoza on 27 October 1992, all delicts and offences directly associated with or flowing from the shooting and massacre of a number of people at a tavern in the Ngema section of the Natalspruit township in Gauteng on or about 22 January 1993, and the attack on the Madlala Supermarket in or about January 1993.
The second applicant, named as Thulani Terrence Mlaba in his application form, explained that the name Mlaba was an alias and that his real name was Tsotetsi. Hereinafter he will be referred to as Tsotetsi. He applies for amnesty in regard to the murder of Sam Ntuli and the attack on the Ngema tavern mentioned above as well as the killing of one Norman Sithole at or near Natalspruit on an unknown date. he initially also applied for amnesty for the killing of one Happy Mbele in December 1992 and also for an unspecified number of offences relating to driving people out of their homes and the abduction of an unspecified number of persons to a hostel in Thokoza. He did not proceed with the application relating to the death of Mbele. He explained that this incident appeared on his application form as a result of the fact that his application form was filled in by a fellow inmate and not by himself and that some of the information on his application form was taken from newspaper cuttings.
The third applicant, Nicholas Zwile Chamane, only applies for amnesty for his participation in the massacre at the Ngema tavern.
All three the applicants testified at the hearing. The applications were opposed but only one victim, the owner of the Ngema tavern, Mrs Priscilla Mvelase, testified. One of the implicated parties, Mrs Gertrude Mzizi a prominent leader of the IFP, also testified.
From the evidence adduced before the committee it became clear that with the possible exception of the third applicant, Chamane, the applicants were part of a group responsible for a reign of terror in the Thokoza and Natalspruit areas during the period 1991 to 1993. It also became clear that in their involvement in these various attacks (albeit against the background of general political unrest in that area where clashes between the supporters of the ANC and the supporters of the IFP were the order of the day) there was a fine line between offences committed with political objectives and pure criminality.
The Committee is of the opinion that criminal intent was the major reason for the involvement of the first and second applicants and bases this conclusion on the following.
The first applicant, Zimu, was employed as a taxi driver by one Bishop Mbhekhiseni Khumalo, hereinafter referred to as Khumalo. In his written application he stated that he was not an IFP member and that he was forced to kill innocent people. he later explained that the application form for amnesty was not filled out by him personally but by a fellow inmate. Yet in his evidence before the committee he more or less confirms the gist of this information by stating on page 35 of the transcript of the evidence: "...I did not have much information of the IFP. We were arrested shortly after the Ngema incident and therefore I did not have much knowledge about the structures of the IFP. I only got to know some of these things whilst I was in prison." He also admitted to having no knowledge of self-protection units that were formed by IFP members in Thokoza. It is also significant that when referring to people who were targeted he specifically mentions that some of the people were business people owning garages and shops "these were people targeted." Later in his evidence he again mentions names indicating that targets included business people such as "Nkosana, he owned a garage that once belonged to Mabuleng Mbisa" and "Thami, he owns a bottle store." (Page 12 of the transcript). When asked why he accepted instructions allegedly given by Khumalo and why he considered him to be the authority his reply once again indicates that political motives were not uppermost in his mind "It was very difficult. I assumed that he was holding a top position within the IFP." (Page 10 of the transcript). Of further significance is the fact that it was Zimu who on his own evidence took money from the victim, Mrs Mvelase, the owner of the Ngema tavern, although he alleged that she had given it to him (she was obviously mistaken in thinking it was Tsotetsi) without having been asked for it. Mrs Mvelase denied this in her evidence and furthermore testified that the tavern was not only frequented by ANC supporters. Her neighbours, she stated, were in fact, members of the IFP and there was no enmity between them. There is no reason to reject this evidence, in fact, this part of her evidence is to an extent borne out by the testimony of the third applicant, Chamane, that a person who came out of the tavern, apparently known to the second applicant, Tsotetsi, was warned not to go back into the house. The evidence of Tsotetsi, a self-confessed criminal whose application forms, statements and evidence abound with contradictions and vague statements, and who, in a number of incidents, was clearly being used for his skills as a car thief and on account of his notoriety as a criminal rather than his political convictions, does not assist the Committee in considering the application of the first applicant. The Committee is of the view that on the probabilities the motive for the attack on the tavern was either business rivalry or robbery or a mixture of both.
On the face of it the assassination of Sam Ntuli appears to have taken place within more of a political context but here too, in the opinion of the Committee, mercenary considerations were a major consideration. Once again, on the probabilities, this appears to have been the primary cause for his assassination. it is common cause that at the time of Ntuli's death the conflict between ANC and IFP supporters had not yet clearly crystallized. Ntuli was a civic leader who had organized go slows and strikes. According to Zimu the complaint against Sam Ntuli came from the people who operated the taxis because his activities caused them to lose money. Furthermore Mrs Gertrude Mzizi who was a leader within the ranks of the IFP testified that Ntuli was a peacemaker and on a good footing with both her and her husband who both occupied senior positions within the IFP. The Committee finds no reason to reject this evidence. Consequently the committee is of the view that the pecuniary interests of some taxi owners or business people were the main reason for the assassination of Mr Ntuli although indirectly his political association was the basis for his actions which negatively affected some businessmen. The involvement of the first and second applicants was primarily restricted to keeping the assassins informed of Ntuli's movements and stealing the vehicles that were to be used in his assassination. In all probability they did not overly concern themselves with the motives of their masters.
The killing of Vusi Shabalala seems to have emanated from the fact that he had ambitions of furthering the activities of Mr Ntuli. These activities would similarly have had a negative effect on the income of some taxi owners. Once again the role of the applicant was a very peripheral one in that he was only instructed to pick up the victim in his taxi at the council offices so as to make it possible for the assassins to shoot him upon alighting from the taxi. If Shabalala was a political opponent as alleged by the applicant, it is highly improbable that he would have made use of a rival taxi. Here again, the Committee is not satisfied that the offence was committed with a political objective as envisaged by the Act.
The attack on the Madlala supermarket in or about January 1993 is the incident which most clearly shows that business rivalry was the overriding cause of the violence where Zimu was involved. The evidence of the applicant that the owner of the supermarket was an ANC person who had bought a supermarket in an IFP stronghold, and that the people shot were IFP people who did their shopping there, just does not make any sense at all and is rejected.
The evidence of the second applicant Tsotetsi has already been referred to above as having been inconsistent, vague in places and contradictory. We also referred to him as being a self-confessed criminal whose criminal activities clearly made him a useful tool in the hands of people who wanted to get rid of business rivals and/or fill their pockets with income derived from stolen goods. Tsotetsi himself testified that goods from people who were driven from their homes, allegedly for political reasons, were taken to pawn shops in Alberton. Viewed against the general background of all his activities Tsotetsi who appears to have had a foot in both political camps, at least at some stage, participated in whatever criminal activities that came his way with very little regard for the politics that may or may not have been involved. If anything, the political upheaval only served to provide more fertile ground for his criminal activities. In his evidence before the Committee in cross examination by the legal representative for the third applicant, he clearly stated: "I had no problem with ANC people because I grew up in the township." (p 311 of the transcript.) The Committee is not satisfied on the evidence before it that any of the offences committed by him were not, to say the least, severely tainted by purely criminal motives. The witness Mzizi would not in her evidence even acknowledge him as a member of the IFP.
The application of the third applicant, Chamane, who was involved in the Ngema massacre, caused the committee some difficulty. Chamane was clearly a bit of an outsider in relation to the other two applicants. He was also the only one of the three applicants whom Mrs Mzizi acknowledged as a member of the IFP. It is not quite clear how Chamane got involved in an incident with two persons who were almost strangers to him. His version of exactly what happened does not accord with that of his two co-applicants in many respects. Acceptance of Chamane's evidence that he was not present when his co-applicants were briefed, allegedly by Khumalo; that Tsosetsi had told him that there were ANC people hanging out at Ngema tavern; that he was a member of the IFP and an IFP Self-protection Unit (SPU) in a hostel; that he (other than his co-applicants) received his fire-arm from an Induna at the IFP hostel where he stayed and that he bona fide believed his co-applicants to have been motivated by political convictions would explain this. Whether this belief was reasonable must be decided in the light of the nature of the gathering at the Khumalo household that night. Chamane was not aware of the rumours that Khumalo had been involved in the killing of his own wife. He bona fide feared an attack on the day of the funeral and he took his instructions from the Induna to protect all IFP members very seriously. He readily admits that he understood that they were going on a reconnaissance mission but that he personally was ready to attack if the circumstances were conducive to this. His bona fides is further borne out by the fact that his first thought after the attack was to report it to Induna Mkhonto.
Further factors the Committee regarded as being in the favour of Chamane are: there was little evidence that he had been involved in other activities of a criminal nature with either his co-applicants or otherwise; he had only met his co- applicants for the first time on the night of the incident; the attempts of his co-applicant, Tsotetsi, to implicate him in two other incidents are not convincing; his name did not feature on the list of people who allegedly made up the "Khumalo gang". (cf the Report of the Independent Board of Inquiry. (Page 29 of the bundle prepared for the hearing); and finally he was consistent in the evidence he gave at the Human Rights Violation as well as the Amnesty hearing. In conclusion: the Committee is satisfied that the third applicant, Nicholas Zwile Chamane, has complied with all the requirements for amnesty, that he has acted with a political objective as required by the Act and that he has made a full disclosure of all relevant facts. Accordingly Nicholas Zwile Chamane is granted amnesty for all offences and delicts flowing from or directly associated with the massacre of persons at the Ngema tavern at or near Natalspruit on 22 January 1993.
The Committee is not satisfied that the first and second applicants have acted with a political objective as envisaged by the Act and consequently their applications are REFUSED.
The Committee is of the opinion that all persons injured and the next of kin of persons killed in the attack on the Ngema tavern are victims and they are referred to the Committee on Reparation and Rehabilitation in terms of section 29 of the Act.
SIGNED AT CAPE TOWN THIS THE DAY OF 2000.
JUDGE S M MILLER
ADV. F J BOSMAN
ADV. S S SIGODI AC/2000/199
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.
RODNEY ABRAHAM MOEKETSI TOKA 1ST APPLICANT
(AM 6034/97)
FRANCIS PITSI 2ND APPLICANT
(AM 7193/97)
JOHANNES TSHIPANE MALEKA 3RD APPLICANT
(AM 7452/97)
GEORGE MATHE 4TH APPLICANT
(AM 5697/97)
REGINALD NOAH LEGODI 5TH APPLICANT
(AM 7745/99)
THAPELO REUBEN KGOTSA 6TH APPLICANT
(AM 7653/97)
ALFRED KGASE 7TH APPLICANT
(AM 7737/97)
JOSEPH NKOSI 8TH APPLICANT
(AM 7273/97)
DECISION
These are applications for amnesty in respect of a wide range of incidents, namely attacks on police, planting of limpet mines, bombings and unlawful possession and use of firearms and explosives. The attacks took place in Pretoria, Mamelodi and Atteridgeville between 1988 and 1990. All the applicants were members of Mkonto Wesizwe ("MK"), the then military wing of the African National Congress ("ANC") when these acts were committed. It is our intention to summarise the evidence that was led in respect of the different incidents in which respective applicants were involved. We do not deem it necessary to detail the evidence of each applicant, save for where there are compelling reasons to do so. We should also mention that some of these applications are being opposed.
It appears from the evidence that after Toka had been trained by MK in exile, he returned to the Republic of South Africa with orders to carry out military operations on behalf of the ANC and MK in the Pretoria area. He says when he and his commander, Mishack Oderille Maponya, were infiltrated into the country in 1988 their orders were to recruit, train and arm ANC supporters in its armed struggle against the previous government. Initially the command structure consisted of himself and Maponya, but later of himself, a "Liverpool" and "Webster". Once they had given the necessary training to the recruits it was their task to ask the ANC in exile to send them weapons to pursue the struggle. The weapons were then distributed amongst the recruits to attack selected targets in terms of the ANC policy. Amongst the ANC supporters who were recruited by Toka in the Atteridgeville area were:- Francis Pitsi, Earnest Ramadithe, George Mathe and Johannes Maleka.
In Mamelodi the following were recruited:-
Peter Maluleka; Stanza Bopape (deceased); Reginald Noah Legodi; Thapelo Reuben Kgotso and James Kgase. As the political commissar Toka gave them political education and issued specific orders as commander. Generally, at all relevant times the applicants received instructions from him and Maponya. He says a recruit would identify a target and motivate why it had to be attacked. Then a discussion would take place around the proposed target and plans would be made to ensure the success of the operation. Toka and Maponya supplied the necessary weapons. In many of the initial operations Webster did the reconnaissance before attack. Until they were arrested and held together in police custody, members of the two groups from Mamelodi and Atteridgeville were not aware of each other's existence and operated separately. Peter Maluleka was only involved in one incident, hence his application was dealt with separately and amnesty granted.
1. THE MURDER OF THREE (3) MEMBERS OF THE SOUTH AFRICAN POLICE FORCE.
The attack on three (3) policemen, namely Barney Mopa, Andrew Mphahlele and Nelson Phanyase was carried out at Mariana Street in Atteridgeville on 18 March 1988. Pitsi, Mathe and Ramadithe executed the attack on the targets who were patrons in a shebeen at the time. The victims were shot and killed because the applicants believed that they were taking part in police bombing of homes of comrades. It had already been gathered that they frequented the shebeen and this was a convenient place to launch the attack.
The three were not the only targeted police in the area. According to Mathe, David Motaung and Freeman Lesley were also going to be attacked at some stage in the future, for the same reason that they were harassing comrades. In one of the incidents a woman whose daughter had been killed by police in the unrest, had her house bombed on the day of the funeral. She died as the result of injuries sustained. The applicants and ANC supporters generally believed that this was an attack by the police.
An AK47, a Markarov Pistol and a handgrenade were used to attack the 3 deceased. After the attack the relevant applicants retreated to Marble Street where they met Maponya who asked if all had gone well. They replied in the affirmative. Pitsi was accidentally injured in the attack, probably shot by one of his comrades, and had to travel to Botswana to have the bullet removed. Toka did not take part in the attack but received a report from Pitsi who commanded the operation.
Before the attack was proceeded with, Toka communicated with his superiors and commander in Botswana, Naledi Molefe. The latter subsequently died there in a SADF raid. Toka had supplied the necessary hardware for the attack which took place at night. The following persons were also accidentally injured:-
1. Tickey Maleka; and
2. Ananias Nkoane
The applicants have testified that these two (2) victims were patrons at the shebeen and were shot by mistake. They were not the intended targets. At the hearing the two victims testified and accepted the explanation. They do not oppose the applications.
2. THE HANDGRENADE ATTACK ON THE HOUSE OF LUCKY MANETTE KULELE AT MAMELODI GARDENS. Applications here are for the following offences:-
1. The murder of a 14 months old baby, Patience Kulele;
2. The attempted murder of Rose-Mary Muzwayine;
3. The damage to property, namely House No. 855, Mamelodi Gardens belonging to Lucky Manette Kulele; and
4. Unlawful possession of a handgrenade on the 10 May 1988.
In the evening of the 10 May 1988, and whilst Kulele was at work, his home was attacked with a handgrenade. Patience was killed as the result of injuries sustained in the attack. her mother, Rose-Mary, was severely injured. Extensive damage was caused to the house and furniture. Toka testified that the attack was directed at Kulele, and not at Patience and Rose-Mary. The latter is the spouse of Kulele. Kulele was being attacked because he was a policeman who harassed members of the applicants' predominantly ANC community in trains. It was expected that he would have been at home at the time of the attack. There is much controversy and confusion as to who exactly carried out the attack, but Joseph Nkosi and Bernard Mokonyana were, in one way or the other, involved in the attack. We shall not delve into the contradictions at this stage. Mokonyana has not applied for amnesty for his alleged involvement in the attack. At the trial he was found not guilty on the charges of murder of Patience and the attempted murder of Rose-Mary. Toka says he instructed Webster whom he trusted to be an expert in intelligence work to do the reconnaissance. Webster later reported to him that the attack could go ahead. He had not made mention of a woman and a baby staying with Kulele. Toka says after the attack had been launched there was a general feeling amongst members of his unit that the operation had not been a success. For some unexplained reason, it had been carried out before the hour for which it was scheduled to take place, and a woman and a baby were affected. Toka asked Webster why he had not told him about the presence of the two (2) in the house, and it is also not clear what explanation was given by Webster, but he did not find it satisfactory. Toka was questioned at length as to what precautions he had taken to ensure that no innocent women and children would be injured. At the end of his testimony it was quite clear that the case was a example of what was envisaged at the ANC Kabwe Conference in 1985 where it was resolved to intensify the armed struggle against the previous Government, inevitably putting more civilians at risk. It is against this background that the actions of the applicants should be viewed. Toka repeatedly states that he entirely relied on Webster who had received extensive training in intelligence work in Russia. He was also responsible for the screening of new recruits to prevent infiltration. For these reasons we are of the view that his explanation should be accepted as it is clear that it was a bona fide operation carried out by bona fide members of a publicly known liberation movement, bearing no malice against the resultant victims. There is also no indication that they acted in pursuit of personal gain.
Nkosi testified that he was present when Bennie Mokonyane reported to Toka and Webster that he had identified police houses to be attacked. Toka instructed Webster to do the necessary reconnaissance and report back to him. At that stage Nkosi did not know the intended targets, but he later became aware that Kulele was one of them. When Webster came back to give the report, Toka issued an order to Mokonyana that the attack be carried out. Nkosi says he was later advised by Toka that the operation had been carried out. He does not know who else was involved but he personally never took part. He says he is seeking amnesty because he was present when the order was given and associated himself with the intended action. He did not know that Kulele stayed with a wife and a baby. He goes on to say that he knew Webster as an intelligence operative who worked under Toka and when they were arrested Webster became a state witness, and later an askari. He was subsequently killed for having betrayed his comrades. Nkosi also testified that he does not know why a handgrenade was used because he was not there when it was issued, presumably by Toka. He is the one who introduced Mokonyane to Toka, since as a driver he could help the latter with transporting weapons to certain destinations. He does not know who Toka reported to in Botswana, as he claims, but he reported to MK authorities in Swaziland. It is not necessary to deal with his credibility in any great detail. In general he was a very poor witness who continuously evaded questions. At the end of his testimony it became clear that he was doing his best to minimise his role in the incident. In the circumstances he certainly cannot be said to have given a full disclosure. Another witness who testified, having been called by Counsel for the family in this matter, was Bennie Mokonyane but it is not necessary to deal with his evidence in the light of our conclusions and the reasons therefor. 3. THE JUICY LUCY BOMB BLAST ON THE 26 MAY 1988.
The applicants in this incident are Toka, Pitsi, and Mathe. Ernest Ramadithe who is said to be now mentally afflicted, or affected also took part. He has not applied for amnesty. His mental state is most unfortunate as he could have thrown further light on the matter. Juicy Lucy was a cafe at Vermeulen Street in Pretoria, selling fast foods and perishables. The applicants say intelligence gathering revealed that it was frequented by members of the South African Defence Force ("SADF") who had an office nearby. They also say they had information that the National Party ("NP") was on that day celebrating its 40th anniversary of uninterrupted rule. The applicants wished to disrupt the celebrations and expected that if a limpet mine was placed at Juicy Lucy or in the vicinity, members of the SADF would be killed in the blast. This would also make a political statement of ANC presence inside the country. Toka says the operation was carried out with the approval of the ANC in Botswana. Either himself or one Godfrey Makobe went there to obtain the necessary approval, as they had always done before carrying out an operation. Reconnaissance of the area was done by Webster and Toka also came there to see the place and satisfy himself. He says he was able to confirm the correctness of the information. Amongst the Juicy Lucy patrons he saw were SADF members who constituted the majority and a few civilians. Although Pitsi had taken part in the earlier discussions and planning for the operation, he did not participate in its execution. At that stage he was still recuperating from the injuries previously sustained when they attacked the three police. He did not even go there to see the place to be attacked, nor did he know when exactly the operation was going to be carried out. Toka testified that he gave no details as to where exactly the limpet mine was to be placed. This was going to depend on the circumstances at the scene and the discretion of the operative on the ground. He was not there when the mission was carried out, and he had not seen Mathe and Ramadite shortly before they left to execute the operation. So, he did not know what arms exactly each one of them had in his possession. A while before Mathe and Ramadite met Pitsi who supplied them with the arms which he had previously obtained from Maponya. On the same day Mathe was supposed to place a limpet mine in a car at Proes Street. Ramadite was to place the limpet mine in the Juicy Lucy area. He placed it on the pavement on the Corner of Andries and Vermeulen Street in a flower pot. When it exploded the following civilians who were in the vicinity were injured:-
1. Matilda Eleonare Venter;
2. Elke Martha Hansen;
3. Anna Marina Prinsloo;
4. Susanna Maria Magdelina Kruger and
5. Alida Maria Claasen
Various buildings in the area were also damaged, namely Golf PRO Business Enterprise; State Library; Magistrates' Office Building; Old Mutual Building and a vehicle belonging to SADF. Not a single SADF member was injured or affected by the blast which occurred between 13h00 and 14h00. Toka says it is unfortunate that the victims were injured because they were not the targets. The tries to explain that:-
"Once you identify a group of soldiers who eat in a certain place, what is in the mind of a soldier when you place a bomb, is to carry out an attack against the soldiers who are eating there. He is not carrying out an attack against those people that are passing there."
Prinsloo testified that on the day in question she ad her four (4) colleagues were coming from Juicy Lucy when they were struck by an explosion approximately 20 yards away. That is where they used to have their lunch, approximately once a week and would stay there for approximately 30 minutes to an hour. She says Juicy Lucy was mostly visited by women. Very seldom did male SADF members visit the place. There was no concentration of such members in the vicinity when the explosion occurred. She sustained severe shrapnel wounds to her face and right hand side of her neck. Both eyes were injured and she had to undergo two (2) operations on her right eardrum. She still suffers from severe hearing problems. Worst of all, she still has shrapnel in her body.
The problem in this case is that Ramadite, who placed the bomb, did not testify to explain why he placed the limpet mine n a flower pot and not adjacent or near the entrance of Juicy Lucy. Mathe testified that he attended the planning meeting where Maponya, Toka, Pitsi and Ramadite were present. Maleka was not a member of the unit at that stage. The subject of discussion was plans to place a limpet mine in the vicinity of Andries and Vermeulen Streets. At the meeting Ramadite pointed out that the offices of Finance, Trade and Industry were situated in the Juicy Lucy vicinity. Seemingly, he was suggesting that in the alternative, they should be targeted. The suggestion was not followed and in the end Ramadite was told "to target SADF members", but he was not told where precisely to place the limpet mine. This was a general order and he was warned to avoid hitting civilians. It is clear that once the order was issued such danger was inherent to the operation. There is, however, no evidence that any attention was paid to that art of the order that injury to civilians be avoided.
After carefully considering all the problems pertaining to the Juicy Lucy operation we are satisfied that the incident occurred as the result of the conflicts of the past. There is no doubt that this was an operation carried out by members of a liberation movement. The matter has to be seen in the context of the 1985 ANC Kabwe Conference resolution to which we have already alluded. The applicants further appear to have given a full disclosure of the relevant facts. Their evidence, that the operation was aimed at SADF personnel in the area to make a political statement of ANC presence inside the country, has to be accepted. The evidence does not suggest that they were acting out of malice or personal gain when they carried out the operation. It is now clear that in many cases civilians were increasingly getting caught up in the violent conflict of the past.
4. THE PROES STREET BOMBING
This operation was planned in conjunction with the Juicy Lucy attack. Mathe placed a limpet mine on a Renault vehicle parked in Proes Street in Pretoria. The vehicle belonged to B.R. Walster. No person was injured. Mathe says he had strict orders from Toka to ensure that no civilians would be hit. The sole aim of the blast was "to undermine the security of the (Apartheid) regime" and make the presence of the ANC felt. He acted alone. Mathe and Ramadite had travelled together from Atteridgeville, using a taxi with the limpet mines in their possession. When they arrived in town, they went in different directions. Mathe went to Proes Street and Ramadite to Juicy Lucy, each carrying his own limpet mine.
5. THE BOMBING OF ATTERIDGEVILLE MUNICIPAL OFFICES
This incident occurred in 1988 and (it) was carried out by Maleka who used a "Super" Limpet mine to blow up the offices. All the municipal employees had already left and no person was injured. The offices were seen as a legitimate target of the ANC. Maponya had given the order.
Maleka testified that at the time there was a rent boycott by residents. Whenever they marched to the offices to discuss the issue with the authorities they would be shot and killed by the security forces. Maleka also said he had timed the bomb in such a manner that it would explode after municipal employees had left. He did not want them to be there when the explosion occurred.
6. THE ATTACK ON THE HOUSE OF SIMON MYEKE AND THE ATTEMPT TO KILL HIM
This house, at Block "O" 8414; Mamelodi East, was attacked on 4 June 1988. Myeke was a member of the South African Police and was amongst those police who were targeted. The attack was carried out by Legodi; Kgase and Kgotsa on the orders of Toka. No person was injured and the house was damaged. According to the charge sheet, which is undisputed by applicants, Myeke and his family were in the house when Kgotsa threw a Russian made handgrenade and this operation was an attempt to kill them, and to damage their house. Kgase also had a handgrenade but he did not use it. The applicants say the aim was to kill Myeke.
7. THE ATTACK ON THE HOUSE OF BANGIWE CHARLES NDALA
Toka says they received information from their "intelligence sources" which he could not disclose, that Ndala was passing off information about comrades to the police. They say this was because a member of the SAP, Wiseman Hlongwane frequented his house. Ndala testified and denied that he was an informer. He said Hlongwane used to come and enquire about the whereabouts of a woman who used to stay with him. She had joined the ANC in exile at the time. A hand grenade was thrown into Ndala's house No. 12670 at Mamelodi East. The structure and a Toyota Kombi of Ndala that was parked outside that evening were slightly damaged. No person was injured in the attack. The handgrenade did not get into the house and exploded as it hit against the wall. The operatives were the same unit that had attacked the home of Myeke,namely Legodi, Kgase and Kgotsa. They were acting on the orders of Toka. At the hearing Counsel for Ndala submitted that not to reveal the names of the sources of the information constituted a failure to make a full disclosure and that the applications should therefore be refused. We have already given a ruling on the issue and expressed disagreement with the view. We accept that the applicants did not know the stated purpose of the visit by Hlongwane and subjectively believed that Ndala was an informer. However, there is objectively speaking no credible evidence to that effect before the Committee, and it cannot be said that the applicants acted out of malice, spite or ill-will when they attacked Ndala.
8. THE ATTACK ON RONALD MULATEDZI'S HOUSE NO. 12193, MAMELODI EAST
Mulatedzi was also a member of the SAP at the Mamelodi West Police Station. It is clear that he was quite unpopular to comrades in the area and thus became a target of the same group that had carried out the attacks at the homes of Myeke and Ndala. No person was killed and no damage was caused when a Russian made FI handgrenade was thrown at his house.
9. STERLAND THEATRE COMPLEX; LION BRIDGE FEEDS AND VAN ASWEGEN BROTHERS: BOMBINGS
The Sterland incident occurred on 15 April 1988 when Oderille "Mainstay" Maponya was accidentally killed by a bomb which prematurely exploded in his hands. Toka is the only one amongst the applicants who was in the company of Maponya at the time. This was at the Corner of Beatrix and Schoeman Streets. There was no specific human target for the bomb but to make a political statement of ANC presence in the Pretoria area. Toka was about 150 metres away from Maponya when the bomb accidentally exploded. Cars were damaged in the explosion and Carin Janse Van Rensberg received minor injuries. Toka applies for the attempted murder of Van Rensberg and other cinema goers who could have been killed and for damage to nearby cars that were damaged as a result of the explosion. The vehicles belonged to Mr J.A. Botha, Mrs H.M.P. Du Preez. "Sonstraal-Woonstelle" building was also damaged.
Nobody was injured in the other explosion but damage was caused to the buildings occupied by Lion Bridge Feeds and Van Aswegen Brothers.
10. THE BOMB EXPLOSION AT SAULSVILLE RAILWAY STATION
This happened on 5 June 1988, being carried out by Ramadite, Maleka and Mathe. It was on a Sunday and trains were expected not to be too busy. The blast was intended to coincide with a stay-away which was to commence the following day. Nobody was injured and the train (No. 9018) was damaged by the Russian made 158 mini limpet mine which had been placed inside.
11. THE ATTACK ON THE HOUSE OF MPHAHLELE
This occurred at Tsakane Section in Mamelodi in the evening of the 15 April 1988 and was carried out by Legodi and Kgotsa. Initially they conducted the reconnaissance around the place for several days. They then contacted Toka and Maponya for permission to go ahead with the attack. Toka told them to wait. He was going to revert to them at a later stage. Thereafter he came back and told them to proceed. Legodi and Kgotsa then took an AK47 and a handgrenade and proceeded to the house to launch the attack. Legodi threw the handgrenade at the window whilst Kgotsa gave cover. It exploded and only caused minor damage to the wall. No person was injured or killed. Mphahlele who was a member of the South African Police Force was staying alone in the one-roomed house. There were people staying in the main house, a separate structure, but they were not targets as they were only renting out the room to him.
12. EXCAPING FROM MODABI PRISON
All the applicants were arrested for these offences and whilst they were being held at Modabi prison they escaped on the 18 February 1990 with the assistance of ANC underground structures. No prison member took part in the execution of the escape plan and no member of the prisons service was injured. CONCLUSIONS
The Committee concludes that the applicants are entitled to amnesty for the various offences committed. They have complied with the requirements of the Act and have given a full disclosure of the relevant facts. It is clear that they acted with a political objective and the applications are accordingly decided as follows:-
1. Amnesty is hereby GRANTED to Rodney Abraham Moeketsi Toka; Francis Pitsi and George Mathe for the following offences:-
(a) The murder of Barney Mopa; Andrew Mphahlele and Nelson Phanyase.
(b) The attempted murder of Tickey Maleka and Ananias Nkoane.
Amnesty is further GRANTED to Francis Pitsi and George Mathe for unlawful possession of unlicensed firearms, namely an AK47 and a Makarov Pistol, respectively during the period relevant to the aforementioned attacks.
2.1 Amnesty is GRANTED to Rodney Abraham Moeketsi Toka for the following offences:-
(a) The murder of Patience Kulele;
(b) The attempted murder of Rose-Mary Muzwayine;
(c) Malicious injury to property House No. 855, Mamelodi Gardens.
2.2 It is however REFUSED to Joseph Nkosi in respect of the crimes under paragraph 2.1.
3. Amnesty is hereby GRANTED to Abraham Moeketsi Toka; Francis Pitsi and George Mathe for the following offences:-
3.1 The attempted murder of Matilda Eleonare Venter; Elke Martha Hansen; Anna Marina Prinsloo; Susanna Maria Magdelina Kruger and Alida Maria Claasen.
3.2 For Malicious Injury to Property caused in the course of the execution of the "Juicy Lucy" bombing, namely an SADF Vehicle; Golf Pro Business Enterprise Premises; State Library; Magistrate's office Building and Old Mutual Building.
3.3 Amnesty is also GRANTED to Francis Pitsi and George Mathe for unlawful possession of Russian made limpet mines at Pretoria on the 26 May 1988.
4. Amnesty is GRANTED to George Mathe and R.A.M. Toka for the Proes Street Bomb Blast, Pretoria, and for the damage caused to a vehicle belonging to B.R. Walster on the 26 May 1988.
5. Amnesty is GRANTED to R.A.M. Toka and Johannes Tshipane Maleka for the planting of a bomb and for the consequent damage caused to the Atteridgeville Municipality Offices in 1988. They are also GRANTED amnesty for unlawful possession of a "Super" Limpet Mine at the time.
6. Amnesty is GRANTED to Toka; Reginald Legodi; Alfred Kgase and Reuben Kgotsa for the attempted murder of Simon Myeke and for the damage caused to his property. Amnesty is further granted to Reuben Kgotsa and Alfred Kgase for unlawful possession of a handgrenade on the 4 June 1988.
7. Amnesty is GRANTED to Rodney Abraham Moeketsi Toka; Reginald Noah Legodi; Alfred Kgase and Thapelo Reuben Kgotsa for the attempted murder of Bangiwe Charles Ndala and Ronald Mulatedzi. They are further granted amnesty for malicious damage to property and for unlawful possession of handgrenades at the relevant time. 8. Amnesty is GRANTED to Rodney Abraham Moeketsi Toka for the attempted murder of Chris Janse van Rensberg and other unknown persons and the malicious injury to property relative to the Sterland Theatre Complex incident.
9. Amnesty is GRANTED to Johannes Tshipane Maleka and to George Mathe for Malicious Injury to the property of the former Department of South African Railways and Harbours on 5 June 1988 at Saulsville and for unlawful possession of a limpet mine.
10. Amnesty is GRANTED to Rodney Abraham Moeketsi Toka; R.N. Legodi; and T.R. Kgotsa for the attempted murder of Constable Mphahlele and malicious injury to property. They are also GRANTED amnesty for unlawful possession of an unlicensed AK47 and a handgrenade on 15 April 1988.
11. Amnesty is GRANTED to Rodney Abraham Moeketsi Toka in respect of the bomb explosions at Lion Bridge Feeds and van Aswagens at Pretoria on 15 April 1988.
12. All the applicants are GRANTED amnesty for escaping from lawful custody.
It is recommended that the victims of the various offences and actions of the applicants be declared victims in terms of the Act, and are hereby referred to the Reparations and Rehabilitation Committee of the TRC.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 1999.
JUDGE SELWYN MILLER
CHRIS DE JAGER SC AJ
ADV. NTSIKELELO SANDI AC/2000/200
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.
KEVIN HALL APPLICANT
(AM 1383/96)
DECISION
The applicant applies for amnesty for a number of incidents in which he was involved during the period between December 1974 and February 1976 while he was doing compulsory military service as a conscript. It appears as if the applicant originally made a statement to an investigator of the TRC on June 29, 1996 which was attested to.
Subsequent to this statement, an amnesty application was completed on July 4, 1996, not signed by the applicant, yet attested to by the same TRC investigator as Commissioner of Oaths, to which the original statement was attached. It is also clear that this statement was taken for some other purpose (the conscript hearing?) since it focuses on the atrocities of others and the plight of the applicant. Although there is a quote from this application in volume 2, chapter 2 of the TRC final report in paragraphs 105 - 107, it seems not to have been corroborated. The Committee could not corroborate any of the incidents, and with limited information and no names of alleged victims or perpetrators available, no notices in terms of section 19(4) were issued. The Committee had to decide on the basis of the evidence of the applicant only.
A. INCIDENT 1
This incident occurred in May or June 1975 in Namibia. The applicant was based at Mapungervlei. They went on a seven day foot patrol. The officer in charge was Lt Ferreira and their general instructions were to sweep the area for weapons, terrorists and to obtain information about terrorist movements. They were further instructed to eliminate or arrest any terrorist. On the first night of the patrol when it was already dark, they suddenly came under attack of heavy gunfire. The attack and exchange of fire lasted for about two and a half hours.
At daylight they were instructed to examine the area and specifically not to take any hostages. They found several dead bodies. The applicant came across three severely wounded terrorists. Their arms, legs and lower bodies "were badly severed". Realising that none of them could survive, he shot and killed them. He said that although this was according to instructions and that one had no option but to comply with such order, his personal state of mind at the time was that he could not take this further suffering and that he turned his head away as he shot them. On being questioned he replied that his state of mind at the time was one of ending the suffering, not one of compliance with the order. No corroboration of the incident could be found and the Committee has to rely on the evidence of the applicant.
Accepting the evidence of the applicant, the committee is satisfied that the applicant made full disclosure of all material facts. It is also clear that the incident took place within the context of the conflicts of the past. The remaining question is whether the act was an act associated with a political objective as envisaged in Section 20 (b) of the Act, given the applicant's statement that the actual shooting was motivated by an urge to end suffering of the wounded. However, having regard to the terms of section 20 (3) as guidelines for a decision as to whether the act is an act associated with a political objective, it is clear that the motive of the perpetrator to be considered in terms of Section 20 (3) (a) is but one of a series of considerations to be taken into account. The shooting was committed within the ambit of a political motive as defined, directed at a political opponent (20 (3) (d) ); following an order (even if not done in execution thereof, then certainly with the approval of his commanding officer) (Section 20 (3) (e) ) and not for gain or out of malice. The Committee therefore finds that the act was indeed an act associated with a political objective as contemplated in the Act and amnesty is consequently GRANTED to the applicant in respect of this incident. B. INCIDENT 2
The applicant applies for amnesty for an incident that relates to the capture of four unarmed terrorists near a missionary, Cachet, where several AK47 rifles were found. The four persons were brought to Mapungarvlei base and placed into a seven foot deep hole, eight foot square, where they were kept under guard. Whilst the applicant was on guard, some of the troops poured boiling water over their heads and one jumped into the hole "and cut off the left ear and centre finger of the right hand of one of the prisoners". Although he was in charge as guard, he did nothing to prevent the assaults and he applies for amnesty for this omission. He does not know who the victims were, nor does he remember who any of the perpetrators were.
Again, the Committee has to rely on the evidence of a single witness, the applicant. For the purposes of the consideration of amnesty, the Committee accepts the evidence. Amnesty is therefore GRANTED to the applicant in respect of this evidence.
C. INCIDENT 3
This incident occurred while the applicant was in the employ of a private company known as Community Protection Services in Johannesburg. He was instructed by his superior to collect a police vehicle at John Vorster Square and to drive this to a certain address in Pinetown where the contents were to be delivered. He was also handed a sealed envelope addressed to a Mr Smith. During offloading of the cargo in Pinetown, a crate fell and broke and to his amazement he saw that the contents were R1 and R3 rifles. He drove the vehicle back to John Vorster Square. He did not report the incident to his employer, from whom he received the instruction. The applicant made it clear that as far as he was concerned, he personally did not regard the act as one associated with a political objective. He knows his erstwhile employer, who has since died, to have been a supporter of the IFP.
The Committee was unable to corroborate any of the evidence of the applicant. The act was clearly, even as far as the applicant was concerned, not an act associated with a political objective. The application for this incident is therefore REFUSED.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2000.
JUDGE R. PILLAY
MR W. MALAN
ADV. S. SIGODI AC/2000/201
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
______
JOSIAS SEEMISE APPLICANT
(AM8044/97)
______
DECISION
The applicant is seeking amnesty for the following offences and incidents:-
1. The murder of Zini Shongwe and attempted murder of several other persons whose names appear below during or about 30 July 1991 at or near Ermelo.
2. The attempted murder of United Democratic Front ("UDF") members at Isikhomplazi at or near Ermelo during or about 1990;
3. The murder of two (2) unknown scholars from Thembisa Secondary School at or near Ermelo during 1990;
4. The murder of three (3) scholars at or near Ermelo in or about 1991;
5. The attempted murder of Tilly Nkosi at or near Wesselton, Ermelo, during or about 1991;
6. The attempted murder of Mr Crucket at or near Extensia, Ermelo, during or about 1991;
7. The murder of Jackson Kubeka in Kati township at or near Ermelo during 1991;
8. Various crimes of murder, attempted murder and arson committed at or near Davel during or about 1991.
At the relevant time the applicant was a member of the Inkatha Freedom Party ("IFP"). Presently he is serving a long term of imprisonment for some of the offences which he committed, ranging from murder to attempted murder of members and supporters of the African National Congress ("ANC") in the Mpumalanga Region. An overwhelming number of his actions were carried out with Israel Nyoni Hlongwane, also an IFP member, who previously received amnesty for most of the crimes. The transcript of the evidence that was tendered by Hlongwane at his own hearing was part of the bundle of documents that were placed before the Committee. To expedite the proceedings, the present applicant made a constant reference to relevant portions of the said evidence, the correctness of which he generally confirmed.
The political history and profile of the applicant can be summarised as follows:-
Having been born to a destitute family he left school very early in life. He joined the labour market. In 1979 he was employed at Spar Supermarket in Ermelo where he had clashes with co-workers. He was branded an informer, the reason being that he was refusing to join a trade union and support its activities and campaigns. At the time and place, workers generally sympathised with the ANC which they strongly supported. At one stage an ANC Action Committee resolved that the applicant be eliminated after he was engaged in two incidents of physical confrontation with co- workers who also supported the ANC. Meanwhile the applicant was drifting further and further towards IFP which he saw as his political home. He joined the IFP Youth Brigade and the notorious Black Cats, which also aligned itself with the IFP. He came to know IFP leaders very well and saw them as his leaders. Hlongwane had been sent to Ermelo by the IFP from Kwa-Zulu-Natal where he was to work with the applicant to co-ordinate attacks and counter-attacks. Primarily the applicant’s task was to point out ANC supporters as well as their places of residence. Hlongwane would ensure that such people were killed and their homes attacked. It is in this context that all the offences were committed. We now proceed to deal with the different incidents and attacks and in so doing we only summarise the salient facts:-
1. THE MURDER OF ZINI SHONGWE AND ATTEMPTED MURDER OF SEVERAL OTHER PERSONS ON 30 JULY 1991 AT ERMELO
The attack occurred because the applicant and other Black Cats members were in search of Popolina Shongwe, the son of Zini Shongwe, whom they wanted to kill. When they could not find him they killed her. The killing was intended to avenge the murders of IFP supporters who were being killed in the ravaging conflict between the ANC and IFP.
Before the attack Hlongwane called the applicant, Obed, Sticka and other Black Cats members to Chris Ngwenya’s home, a Black Cats leader. He told then that he had received an order from Noah Mqobokazi, an IFP leader in the area, that Popolina be killed because he was suspected of being involved in attacks on IFP supporters. The applicant did not join the group when the first unsuccessful attempt was made to kill Popolina. On 7 October 1991 a second attempt was made and the applicant was present. He was given a grenade by Hlongwane who armed himself with a 9mm revolver. The others were armed with pangas and grass cutters. The proceeded to the home of Popolina. Mqobokazi had issued an order that if Popolina was not there, his mother should be killed so that when he (hopefully) attended her funeral they would have an opportunity to kill him. They proceeded to Shongwe’s house which they surrounded. Hlongwane kicked the door open. He entered the house. The applicant followed him and inside they found Zini and other patrons who were entertaining themselves with liquor. The house was apparently a shebeen. Hlongwane pointed Zini with a firearm and demanded to know from her the whereabouts of Popolina. She replied that he was not there and that she did not know where he had gone to. Hlongwane took he to each and everyone of the rooms there, searching for Popolina. At that stage Hlongwane had already ordered all the patrons to go into a separate room. When he could not find Popolina he told the applicant to throw the hand grenade into the room where the patrons were. This the applicant did. He removed the pin; threw the hand grenade into the room and closed the door. The applicant and his comrades all fled to Chris Ngwenya’s home. They heard the explosion as they were fleeing. The next day they heard that some people had been injured. Later the applicant and Hlongwane reported the incident to Mqobokazi who congratulated them "for a job well done".
All the said persons, including Zini, were unknown to the applicant and his co-perpetrators and neither Hlongwane nor Mqobokazi believed that they were members of an opponent political organisation (the ANC) and there was not even a suspicion to that effect. The applicant has testified to no (political) objective which was being sought when the patrons were attacked with a hand grenade. We have very carefully considered the evidence pertaining to the murder of Zini Shongwe and we are not satisfied that it was necessary to kill her to ensure that they could lay their hands on Popolina if he came to attend her funeral. The possibility, if not a probability, existed that Popolina would stay away from the funeral and not come back home at all in fear of being killed like his mother. There is also no evidence that any follow-up was made by the applicant and Hlongwane to monitor the whereabouts and movements of Popolina both before and on the day of the funeral so that he could be attacked. We are very alive to the fact that in the circumstances the applicant acted as a so-called foot soldier. We however remain convinced that the murder and attempted murders of the patrons were totally unjustified in the circumstances. In this regard we regret being unable to agree with another panel which previously granted Israel Nyoni Hlongwane amnesty for his involvement in the said incident. It is our considered view that amnesty should never have been granted in the circumstances of the case. 2. THE ATTACK ON UNITED DEMOCRATIC FRONT ("UDF") MEMBERS AT ISIKHOMPLAZI
Isikhomplazi was regarded as an ANC stronghold and its residents were generally targeted for attack. An order had been issued by Mqobokazi to Hlongwane to attack the owners of the shop. One evening the applicant took Hlongwane there to point out the place to him. On the day of the attack Hlongwane was in the company of the applicant who again pointed out the place to him. According to the applicant this was all he had to do. He did not take part in the execution of the attack. One person died in the incident and this information was conveyed to Hlongwane by Mqobokazi. There were no arrests following the incident.
3. THE MURDER OF TWO (2) UNKNOWN SCHOOL CHILDREN FROM THEMBISA SECONDARY SCHOOL
This incident occurred in 1991 as a result of an order from Mqobokazi. It was ordered that they be killed because they protested against the admission of Black Cats members as student at the school. At that time Black Cats members were very unpopular in Ermelo for their actions against residents, in particular ANC and UDF supporters. The applicant says any person who was opposed to Black Cats was regarded as an enemy and had to be killed. The two (2) scholars were known to the applicant as some of the scholars who were opposed to the admission of Black Cats members as students at the school and on the day in question during 1991 he pointed them out to Hlongwane. They were shot and killed on the scene. Reprehensible as this action was, there can be no doubt that it occurred as the result of the conflict between the ANC and the IFP of which the Black Cats were a part.
4. ATTACK ON THREE (3) ANC SCHOLARS
The attack took place at night and it was carried out by Hlongwane and the applicant, again on the orders of Mqobokazi. Initially the order was to track down and kill as many ANC leaders as possible but all attempts were in vain. Then Mqobokazi commanded that Hlongwane should kill any ANC supporter he encountered in the street, In his evidence which was confirmed by the applicant Hlongwane says:-
"…. since China (the applicant) knew them very well, the youth, he is going to show me all the youth and anyone whom we ever meet on our way we should shoot them, and unfortunately we meet these young boys from the night school. China was in front, I was with China most of the operations China will always be in front of me so that he could recognise the people before me. And China on that particular day, confirmed that these were members of the ANC, and the I took my firearm and shot them after China confirmed that they were ANC members. That’s how they were killed."
The applicant was asked how and where he knew the three (3) boys from and he replied that he used to observe them when they were going to attend ANC meetings. He did not say where and when such ANC meetings were held and he personally did not attend them. He goes on to say that he does not know if all the boys were fatally injured as the result of the shooting but accepts Hlongwane’s evidence that three (3) were killed. The probability is quite overwhelming that the attack was an indiscriminate attack by the applicant and Hlongwane and, as such, cannot be said to be an act directed at political enemies. It is clear that Hlongwane and the applicant were quite frustrated that they could not lay their hands on the apparently well-protected and vigilant ANC leader. To vent out this frustration they resorted to random and indiscriminate attacks on who ever they came across at night.
5. THE ATTEMPTED MURDER OF TILLY NKOSI AT OR NEAR WESSELTON DURING 1991
Tilly was one of the leading figures in the ANC Women’s League and was targeted to be killed. When the applicant and Hlongwane saw her in the street the applicant made a sign to Hlongwane who shot her. But she was only injured and did not die from the bullet wound which she sustained. Mqobokazi who had issued the order is said by Hlongwane to have been very frustrated that she was not killed. The attack constituted an attempted murder on both her and her baby which she carried on the back and it was a miracle that the baby was never injured. No prosecution emanated from the incident. 6. THE ATTEMPTED MURDER OF MR CRUCKET AT OR NEAR WESSELTON, ERMELO, DURING OR ABOUT 1991
Mr Crucket was attacked because it was believed that he was supporting the ANC whose members held gatherings at his home. According to orders from Mqobokazi, he was supposed to be killed and the applicant gave Hlongwane a description of his physical appearance as well as the location of his house. When he was shot at he ducked and some unseen people returned fire from his house. They were shooting at Hlongwane who was forced to retreat from he scene. Crucket was hospitalised as the result of the injuries he sustained. No prosecution ensued from the incident.
7. THE MURDER OF JACKSON KUBEKA IN KATHI TOWNSHIP NEAR OR AT ERMELO DURING OR ABOUT 1991
The 18-year-old youth was on his way home coming from a night school when he was shot by Hlongwane after the applicant had pointed him out. In his application the applicant initially stated that he vaguely recalled the attack; that he was willing to accept his involvement in its execution as testified to by Hlongwane and that he had no knowledge of the person referred to as Jackson Kubeka. At the hearing he suddenly recalled that, following the order by Mqobokazi that the ANC youth be attacked and killed, they proceeded from Charles Maseko’s home to Kathi Township. Near the sports ground they saw "a boy" (the deceased) who was approaching them. He says: "He looked familiar because of the way he walked, but I wanted to ascertain and be certain that it was him. I then proceeded and met him, approached him and greeted him and confirmed that yes, this was the person. I then signalled to Sugar Hlongwane to that effect and he proceeded to shoot him.
In the same evening they reported the incident to Mqobokazi and then next day they heard the victim had died. The applicant says he used to see the victim going to attend ANC meetings. We have noted that it is not the applicant’s evidence that Kathi Township was an ANC stronghold in which event there would have been some understandable basis for indiscriminate and random attacks on residents, and in particular, the youth of the area.
Our view is that the applicant is fabricating his version that he knew the deceased before that evening. His evidence is nothing less than an attempt to justify the attack on an unknown person, regardless of the latter’s possible political affiliation, In as much as it cannot be said that in the circumstances the attack was not committed for a personal gain, ill-will, spite or malice, it also cannot be said that it is ‘an act associated with a political objective’ as envisaged in the Act. This was clearly a venting out of frustration on innocent passers-by.
8. CRIMES COMMITTED AT DAVEL DURING 1991
After a while the applicant, Hlongwane and several other Black Cats members moved to Davel where they carried out a number of attacks on houses belonging to ANC supporters. They were doing so on the instructions of Mqobokazi after the latter was approached by Mkhonza, an IFP member and Davel Mayor, whose home had allegedly been attacked by ANC supporters. There were several other houses in the area belonging to IFP members which had also been attacked. Mkhonza wanted the IFP to avenge the attacks. For the present purposes we do not deem it necessary to detail the offences as these will be apparent in our decision in respect of which offences amnesty is granted or refused. But suffice it to say that it can be accepted that the applicant was acting on behalf of the IFP and executed orders from Mqobokazi who was an IFP leader.
In the result the application for amnesty is decided as follows:-
1. The applicant is REFUSED amnesty in respect of the murder of Zini Shongwe and the attempted murder of Pienkie Mirriam Shongwe; Guliwe Shongwe; Kenneth Dennis Masango; Jabile Jostina Khumalo; Wilson Petros Nkosi; Madoda Lionel Mbokani at or near Extensia, Ermelo on or about 30 July 1991. 2. Amnesty is GRANTED in respect of the murder of an unknown person and the attempted murder of an unknown number of people, all being supporters of the UDF/ANC at the Esikhomplazi Shop at or near Ermelo during 1990.
3. Amnesty is GRANTED for the murder of two (2) unknown scholars from Tembisa Secondary School, Ermelo, during or about 1991.
4. Amnesty is REFUSED for the murder of three (3) unknown scholars from a night school at or near Ermelo in or about 1991.
5. Amnesty is GRANTED for the attempted murder of Tilly Nkosi at or near Wesselton during or about 1991.
6. Amnesty is GRANTED for the murder of a man only known as "Crucket" at or near Extensia, Ermelo, during or about 1991.
7. Amnesty is GRANTED for the murder of Jackson Khubeka at or near Kati Township, Ermelo during or about 1991.
8. Amnesty is GRANTED for the murder and attempted murder of an unknown number of persons and the burning down of several houses at or near Davel during or about 1991.
In our opinion all the persons injured as well as the next-of-kin of the deceased in respect of the incidents for which amnesty is hereby granted, are victims and are accordingly referred for consideration in terms of section 22 of the Act.
SIGNED at CAPE TOWN ON THIS the 14 DAY OF November 2000.
______
JUDGE D POTGIETER SC
______
ADV N SANDI
______
MR J B SIBANYONI AC/2000/202
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
______
MORRIS LESHOKA KGOETE 1ST APPLICANT
(AM 145/96)
JEFFREY LUCKY MASUKU 2ND APPLICANT
(AM 0169/96)
JACOB LESIBA MANASOE 3RD APPLICANT
(AM 1299/96)
JOHANNES NTEBELE NTSHABELENG 4TH APPLICANT
(AM 7280/97)
______
DECISION
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 ("the Act"). The matter relates to the killing of Philemon Mesehla ("the deceased") at or near Mooihoek, Nebo in the former Lebowa on or about 15 August 1990. Pursuant to the incident, all of the Applicants were convicted of murder and sentenced to direct imprisonment.
All the applicants testified in support of the application. The widow of the deceased, Mrs Helen Manapo Masehla, was legally represented at the hearing but elected to submit an affidavit, exhibit "A", setting out he position instead of testifying tin view of her emotional state following the tragic death of her husband. She basically left the decision of the matter in the hands of the Committee. Her legal representative, Adv. Vilakazi, presented the evidence of Moses Masehla, the uncle of the deceased.
The version of Applicants is that at all material times they were all members of the African National Congress ("ANC") and the self defence unit ("SDU") in Mooihek which is a rural village subject to tribal structures. A senior ANC member and community leader at Mooihek, Mr Makena, was killed on 10 August 1990 while driving his taxi between Tafelkop and Mooihek. The ANC and SDU suspected that this incident was linked to incidents of violence affecting taxis in the area in which a number of ANC members were targeted and killed. These incidents were regarded as politically motivated attacks on the ANC and its members by anti-ANC elements within the taxi industry. The ANC and SDU leadership decided that this calls for retaliation in defence of the organisation and its membership and to send a message to its opponents that ANC interests would be protected at all costs.
A community meeting was held at the residence of local headman on 12 August 1990 where the killing of Mr Makena was discussed. The meeting was chaired by the headman’s assistant, Mr Kaine Moekoena. A report was given of the circumstances of the killing as well as the identity of the suspected perpetrators. The members of the SDU and youth were instructed to apprehend the suspects and bring them before the community. The commander of the SDU, Joseph Phiri was ordered to lead the search. The meeting which was attended by a majority of ANC members or supporters also resolved that those responsible should be executed.
A further meeting was held at a school in Mooihoek on 15 August 1990 for the purpose of a report back on the search for the suspects. Joseph Phiri reported to the meeting that the suspects had indicated that the deceased hired them to kill Mr Makena. After some discussion a decision was taken that a delegation would approach a sangoma to get a further view on the matter. This delegation would approach a sangoma to get a further view on the matter. This delegation included Joseph Phiri and Jeffrey Masuku, the second Applicant, who had actually made the suggestion that the meeting consult a sangoma. After an unsuccessful attempt to consult the sangoma who was initially proposed, the delegation managed to see another sangoma. Upon their return to the meeting at the school, Joseph Phiri reported back that the sangoma also identified the deceased as the person responsible for the killing of Mr Makena. A group was sent to collect the deceased as well as his uncle, Moses Masehla, and deliver them to the meeting. The deceased was lured from his home, apprehended and brought to the meeting. A different group secured the attendance of Moses Masehla at the meeting.
The deceased was questioned about the killing of Mr Makena. He confessed his role in the killing. He repeated the confession to Moses Masehla, after the latter wanted to make sure that the deceased was indeed involved. The meeting then decided that the deceased should be executed. Some petrol and a tyre were collected and the deceased taken into the mountain where he was executed by means of the necklace. After this body was set alight, the crowd fled from the scene. All of the applicants were present throughout the proceedings and played a greater or lesser role therein. They all associated themselves with the killing of the deceased who was regarded as an enemy of the ANC. They regarded it as their duty as SDU members to act against a political enemy such as the deceased. The ANC would benefit from the killing because it would send a message to their political enemies intending to kill or attack their members, that such actions will not be tolerated. This would protect their members and defend the position of the ANC within the community against those bent upon weakening its influence.
The evidence of Moses Masehla largely coincided with the version of Applicants save for his denial that the deceased confessed to the killing at the school or that he elicited a repetition of the confession from the deceased. He indicated that there is no animosity between himself and the applicants. There is accordingly no reason for them to fabricate a story against Mr Masehla. It does not bolster their case in any way to falsely allege that Mr Masehla asked the deceased again after the latter’s confession whether he was indeed involved in the killing. This appears to us to be highly probable, seeing that the confession must have taken Mr Masehla by surprise. This is perfectly understandable in view of the fact that he was the deceased’s uncle.
Mr Masehla’s version that he was taken from his house to the meeting where he said nothing at all and later simply returned home, strikes us as extremely odd and highly improbable. He testified that he did not even bother to contact the police or enlist help from other quarters even though he knew that the deceased would be attacked and killed by the group that removed him from the school. Of course, the clear effect of applicants’ version is that Mr Masehla went along with the action against the deceased. This could possibly explain some of his conduct, although it is not necessary for present purposes to make any positive findings in this regard. Suffice it to say that we are satisfied that the evidence of Mr Masehla does not disturb the thrust of applicants’ version, and certainly does not establish a sufficient basis for rejecting any aspect thereof.
Having carefully considered the matter, we are satisfied that the killing of the deceased constitutes an act associated with a political objective and that applicants have made a full disclosure of all relevant facts.
In the result the applications comply with all the requirements of the Act and amnesty is hereby GRANTED to the applicants in respect of the killing of Philemon Masehla on or about 15 August 1990 at or near Mooihek, Nebo, Lebowa.
In our opinion Helen Manapo Masehla is a victim in respect of the killing and is referred for consideration in terms of section 22 of the Act.
DATED at CAPE TOWN this 14 day of November 2000 ______JUDGE DENZIL POTGIETER
______ADV N SANDI
______ADV F BOSMAN AC/2000/203
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
______
MOTLANA ATASIOS MPHORENG APPLICANT
(AM 2740/96)
______
DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995. the applicant is seeking amnesty for the following crimes:-
1. The murder of a "white security guard at or near Orlando East, Soweto, during or about 31 July 1986; and
2. Unlawful possession of an unlicensed firearm and ammunition.
Although the matter was set down in order to hear the evidence of both the present applicant and his co-applicant, Mxolisi Ernest Thandakubona, the latter did not turn up at the hearing. No advices had been received from him to explain his position and the reason for his absence. His legal representative, Mr Maleka, had also not heard from him and in the circumstances the committee was compelled to proceed on the basis that there was only one applicant, namely Mr Mphoreng. Before the evidence was heard the Committee was advised that the next-of-kin of the deceased have since left the country and their whereabouts overseas could not be located. We now proceed to deal with his evidence.
At the relevant time he was a member of the Azanian People’s Organisation ("AZAPO"). He also served on the executive committee of the Azanian Youth Organisation ("AZANYO") and Azanian Student Movement ("AZASM"), the youth and student wings of AZAPO, respectively. He received military training inside the country from Tami Mcwera and Sam Seema, also members of AZAPO who subsequently became the commander of the applicant and other AZAPO trainees who included his co-perpetrators in the present case. The training was on the use of small arms such as pistols and revolvers; they were also trained how to disarm target; and to follow orders whenever such are given and not to question them.
The applicant testified that at the relevant time there was a violent conflict between AZAPI and United Democratic Front ("UDF") supporters. The conflict first started in the Eastern Cape and spread to Gauteng, specifically Soweto, where AZAPO members and supporters were targeted and attacked. Explaining the reason for the operation which led to the attack of the security guard, the applicant said they needed arms to protect themselves. Moreover, as part of the political ideology of AZAPO, members were taught that the private business sector was providing the National Party regime with financial support. This made them a political enemy of AZAPI and the black liberation struggle in general. At the time AZAPO was involved in struggle to overthrow the previous political regime. In this context, private security companies were seen as part of the enemy; their personnel were to be attacked and killed. Their firearms would be confiscated and used to defend AZAPO members and advance the general struggle against the regime.
On a certain day the applicant and other trained members of AZAPO, namely Ernest Thandakubona, Skhumbuzo and Thabo Mathala were given orders by Mcwera and Seema to attack members of security guard companies which were escorting commercial vehicles into the township. They were delivering food and other commodities to general dealers, No specific target was pointed out and at the time many townships in Soweto were ravaged by political violence. Commercial vehicles were being attacked. On the day of execution of the order the applicant and all the above- mentioned members of his group, with the exception of Skhumbuzo, were armed with pistols which had been provided by the aforesaid commanders.
Skumbuzo drove the getaway car and the applicant was to provide his comrades with cover. A preliminary reconnaissance had revealed that members of the security guard company normally entered the townships between 10h00 and 10h30. They would stand and watch whilst commercial vehicles were being unloaded. When the applicant and his comrades came to the scene a commercial vehicle was busy offloading and a white security guard’s hand went for his firearm. Thandakunbona there and then shot him and took his revolver. He died instantly. They all left the scene. The applicant and Thandakubona were subsequently arrested and when they were released on bail they left the country to join the Azanian National Liberation Army ("AZANLA"), the military wing of the Black Consciousness Movement ("BCM"), The applicant says Strike who presently is a member of the National Executive Committee of AZAPO made the necessary arrangements for them to go into exile.
Under cross examination by the evidence leader of the Amnesty Committee the applicant slightly changed his evidence in regard to their orders and said the main objective was to confiscate the firearm from the security guard and not to kill him. They were only to kill him if he posed a danger to their lives. As nothing turns on this aspect of his evidence we shall not take it any further. It does not necessarily detract from the apparent veracity of the applicant’s version which we accept as true.
One of the documents that were placed before the Committee was an affidavit from a national executive member of AZAPO, Lybon Tiyani Mabasa (exhibit "A"). He states that he personally knows Mcwera and Seema as AZANLA cadres who were deployed inside the country to carry out operations on its behalf. He further confirms the political membership of the applicant and Thandakubona and that they were so recruited to carry out acts on behalf of AZAPO. Although this was not viva voce evidence the averments are uncontested and we have no difficulty to accept them.
Having considered the evidence and all available information as contained in the relevant documentation before the Committee, we are satisfied that the applicant has complied with the requirements of the Act. We accept that his acts were committed with a political objective as required by the Act. He further appears to have given a full disclosure of the relevant facts. Amnesty is therefore GRANTED for both offences and any delict flowing from the incident.
SINGED on the 15 day of November 2000
______
ACTING JUDGE D POTGIETER SC
______
N J MOTATA (AJ)
______
ADV N SANDI AC/2000/204
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
______
SYDNEY PATRICK KUNENE APPLICANT
(AM 6224/97)
______
DECISION
This application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995. The applicant is seeking amnesty for the following offences:-
1. Arson in respect of the homestead of the former Mayor of Soweto, Mr Tshabalala, during or round about 1983;
2. Arson in respect of Don Shopping Complex in Dobsonville during or round about 1983 which property belonged to Donald Mmesi and
3. Malicious damage to property in respect of a vehicle belonging to one Mr Tshabalala, a member of the South African Police.
Both Tsbalalala, the erstwhile Mayor, and Mmesi have since deceased. The applicant was never charged with any of the said crimes.
The background and political profile of the applicant can be summarised as follows. He was a trained member of Umkhonto weSizwe ("MK"), the military wing of the African National Congress ("the ANC"). He testified that at all times material hereto he was acting on behalf of the ANC and MK.
In 1978 he was recruited by Norman Tedi Mthembu who subsequently gave him military training inside the country. Initially the applicant’s duties entailed operating as a courier for weapons and ANC underground literature but, as things progressed he got deeply involved in the MK underground activities. Mthembu asked him to recruit people to join the ANC and MK in the struggle against the Apartheid Regime. One of the people who were recruited in the process was Abie (deceased) and they all worked together as a unit, namely the applicant; Mthembu and Abie. Primarily, they were opening Dead Letter Boxes (DLB’s) in Soweto where they concealed arms and reading materials. These would be collected by other underground ANC and MK operatives who, for security reasons, were unknown to the applicant and Abie. Mthembu was their Commander in the three-men unit.
On a certain day in 1983, shortly before the Black Local Authorities Act Election were held, which exercise led to widespread opposition and unrest in the black townships, Mthembu came to see the applicant and Abie. He told them that it was an ANC position that people should not take part in the elections. These were seen as part of the National Party Strategy to prolong and entrench Apartheid rule and its diabolic policies of racial oppression. At that stage he did not tell them what exactly their unit was expected to do to respond to government-imposed structures. He said he was going to come back for further discussions and plan of action, to ensure that the elections did not take place. It was quite clear to the applicant that Mthembu was in contact with person(s) high up in the ANC. Later Mthembu returned and said they would have to petrol bomb properties belonging to supporters of the government, specifically the police and community councillors. But they were to ensure that no one could get killed because the aim was only to intimidate such people and any other possible participants in the elections.
The first attack was on the home of Tshabalala, the Mayor. The applicant says in the evening of that particular day they all proceeded to the said place and threw petrol bombs, directing them at the lounge where they were not expecting any person to be sleeping. Indeed, no person was injured in the attack.
The second target was the Don Shopping Complex where they threw petrol bombs. The business property premises were attacked because they belonged to Mmesi who was a Community Councillor at the time. They also left pamphlets there which demanded that Mmesi resign as a member of the Soweto Community Council a "black local authority".
The third incident was also a petrol bomb attack on a vehicle belonging to a policeman, Tshabalala, at Emndeni (address unknown). Tshabalala was a very notorious policeman whom residents feared and hated. He was the only policeman still living in the area as all others had fled. The aim was to force him to leave the area. According to media reports on all the incidents no person was killed or injured. The applicant was never arrested and he left the country immediately after the operations.
The applicant testified that their intimidation tactics and political campaign against the elections paid dividends because many township residents who were expected to participate in the elections on the voting day stayed away. The elections were a complete failure. In addition to the attacks their unit had distributed pamphlets in the township and urged people not to vote.
After considering the applicant’s evidence we are satisfied that he has complied with the formal requirements of the Act. The offences committed are "acts associated with a political objective" in terms of the Act. We accept his evidence that he was a member of the ANC and acted as its cadre and on its behalf. It is clear that he has given a full disclosure of the relevant facts and is therefore ENTITLED to amnesty for all the offences listed above.
We further refer to the Reparation and Rehabilitation Committee all the victims for declaration in terms of Section 22 of the Act.
SIGNED ON this the 15 day of November 2000
______
ACTING JUDGE D POTGIETER SC
______
ACTING JUDGE J MOTATA
______
ADV N SANDI AC/2000/205
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
______
JACOBUS JOHANNES DE RU APPLICANT
(AM 1780/96)
______
DECISION
Applicant applies for amnesty for the killing of three (3) persons, Makhulu Solomon Khumalo, Richard Suputane Makhubo and Phiphaphang Joseph Kabokoane, at Vaalpark in the district of Sasolburg.
The three (3) deceased were allegedly members of the ANC and, on information acquired from a subordinate, a captain Chris Fouché, also trained members of Umkhonto weSizwe. The group, of which Mrs Elsa de Lange was also a member, was infiltrated by Fouché.
At some stage Fouché established that at robbery was being planned at a shopping centre and it was decided that the group would be arrested at the scene. The intention of the applicant was then to investigate the activities of the group relating to their MK membership, while they could be held in lawful detention.
The necessary preparations for the arrest were made. When the deceased arrived at the centre where they were to be carefully arrested, things went wrong, a shot rang out and all three were killed.
Although the implicated party Fouché was represented at the hearing, he did not give evidence and his counsel informed the Committee that he merely confirms his version (before the Committee as detailed on affidavit in the bundle), which describes the incident as a planned killing.
Elsie de Lange gave evidence and denied any involvement in political violence by either herself or any of the three (3) deceased, although she did admit to criminal activities of the deceased, relating to diamonds. The Committee does not deem it necessary to deal with all the evidence, except to say that De Lange and the deceased knew Fouché to be a policeman. De Lange gave evidence that the plan to rob the Hypersave Shopping Centre originated with Fouché and that she did not accompany them because she could not believe that a policeman would propose such a plan without some ulterior motive. She did not trust the police.
It suffices to say that on the version of the applicant himself, he a planned a lawful arrest when, through some negligence, he ordered his men to shoot after having interpreted gunfire as coming from the vehicle of the deceased. He claims to have ordered the shooting to protect his own life and that of his men.
The question remains why the deceased could not, on the information passed on by Fouché, having been arrested without having to allow the attempted robbery to proceed. The Committee finds that if the killings were indeed planned, the applicant did not take the Committee into his confidence and did not make a full disclosure.
The Committee does not have to make a finding though, because if on the other hand the version of the applicant is to be believed, it does not establish a political objective for the killing. In such an event the killings were done in the course of an attempted lawful arrest and the questions of self-defence and necessity can be decided by a court of law. In the instance the application for amnesty is REFUSED. No person is accordingly found to be a victim in terms of the Act.
DATED AT CAPE TOWN this 16 day of November 2000
______
JUDGE A WILSON
______
ADV S SIGODI
______
MR W MALAN AC/2000/206
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
______
JON HENDRICK ROELOFSE APPLICANT
(AM 7955/97)
______
DECISION
This is an application in terms of Section 19 of the Promotion of National Unity and Reconciliation Act No 34 of 1995. The Applicant is currently serving a long term of imprisonment for the murder of the late Victor Zakhele Mlotshwa ("the deceased").
The incident occurred at Stilfontein in the district of Klerksdorp on 21 March 1993 when the Applicant shot and killed the deceased with a firearm. Following the incident the Applicant is now seeking amnesty for the said murder as well as the unlawful possession of a firearm and ammunition. At the hearing the Applicant was the only witness to testify in support of his application for amnesty. The widow of the deceased, Paulina Kedibone Mlotshwa, was in attendance at the hearing and advised the Committee though her legal representative that she was not opposing the application. She was accordingly leaving he matter in the hands of the tribunal.
The Applicant testified that on the day in question he had come back from work and learnt from a newspaper report that an adult white person and two children, also white, had been killed at Eikenhof,. He did not know the said victims. Neither did he know who had killed them and why. At the time there were widespread speculations and suspicions that the attack was politically motivated and that it was probably the work of one of the two black nationalist liberation movements, namely the African National Congress ("the ANC’) and the Pan Africanist Congress of Azania ("the PAC").
The Applicant also subscribed to these suspicions and, in fact, firmly believed that whites were under a threat from blacks. He says at the time, in concert with the view and belief of all the supporters of the Afrikaner Weerstand Beweging ("the AWB"), he believed that on the day of the forthcoming general elections there was going to be chaos and anarchy in the country. All whites were going to be killed. He took a decision :to make a contribution" to counter the perceived threat. Although he knew some of the AWB leaders and its supporters, he did not discuss his decision and plan with anyone of them, namely to avenge the death of his Eikenhof white kith-and-kin by killing any black person he saw in the street that day. Neither did he disclose his intention to his wife who was present at home for a greater part of that day.
The Applicant spent the day at home consuming a considerable quantity of liquor. He also took some tablets which were prescribed medication for his psychiatric problems. He denies that his subsequent conduct on that day had anything to do with his consumption of liquor,. He says although he had partaken of the same he was not so drunk that he did not know what he was doing. (We intend to revert to this aspect later.) At all times, he claims, he knew and appreciated what he was doing.
In the evening whilst he was on his way to work he saw the deceased and called him. When the latter came towards him he shot him. He died instantly and without putting up any resistance. It is clear that the deceased was very much taken by surprise.
In the circumstances of the case we do not it necessary to traverse all the evidence regarding what happened after the murder of the deceased. But suffice it to say that it is quite clear that the incident and conduct on the part of the applicant when he executed the deceased had very much to do with his state of inebriation. The act was totally unjustified in the circumstances and constituted a cold-blooded murder. There is also no merit in the Applicant’s claim that he was a supporter of the AWB and his action cannot be regarded as an action against a political enemy but an act of sheer racism.
The application is therefore REFUSED. In the circumstances it is not necessary to declare the dependants of the deceased victims in terms of the Act since the murder of the deceased in the circumstances cannot be regarded as an act associated with the political conflicts of the past. It is quite clear from the evidence that the Applicant was merely on a drunken frolic of his own.
DATED AT CAPE TOWN this 16th day of November 2000
______
D POTGIETER A J
______
J MOTATA A J
______
ADV N SANDI AC/2000/207
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
______
MOSES MTU DLAMINI APPLICANT
(AM 1574/96)
______
DECISION
The applicant was charged together with four co-accused in connection with the death of an unknown person during November/December 1992 at or near Tongaat.
He was found guilty of murder and the illegal possession of a firearm and ammunition and sentenced to 9 years imprisonment. His co-accused received the following sentences:-
Basil Ngwenya - 3 years
Sipho Ntuli - 3 years
Lucky Ntsheta - 12 years
Michael Khumalo was sent to a Reformatory school.
The applicant and his co-accused were members of a group of ANC members staying near the airport at Tongaat. The group consisted of 16 members and the leader was Lucky Ntsheta. The latter did not apply for amnesty but gave evidence at the hearing. He supported applicant in his application and explained that he did not apply for amnesty because he did not trust the warders and the amnesty process.
According to evidence, Lucky fled from the area where his family resided because they were supporters of the IFP. He came to stay with the group of ANC members at Tongaat and was accepted as their leader. On awakening one morning he saw a person (henceforth to be referred to as the deceased) standing under a nearby tree and keeping a watch on his shack. He immediately felt convinced that this stranger, who had a gun in his hand, was sent by his IFP – family to assassinate him. He escaped through the back window of his shack and managed to reach his friends and summoned them to assist him to "arrest" the suspect.
The applicant, who had a gun, pointed the gun at the suspect and called upon him to surrender himself as he was surrounded by applicant’s comrades. They then disarmed the deceased and started questioning him to "arrest" the suspect. The applicant, who had a gun, pointed the gun at the suspect and called upon him to surrender himself as he was surrounded by applicant’s comrades. They then disarmed the deceased and started questioning him. His answers were unsatisfactory. They then assaulted him with fishing rods. He then admitted that he was sent by Lucy’s brother to eliminate him because of his ANC affiliation.
According to Lucky he there-upon decided to kill this stranger because he was on a mission to kill him and if released would report back to Luck’s IFP family that he failed in his mission. They would then again send somebody else and he might not again be so lucky to see the assassin in time. The deceased was then taken to a nearby bush, tied to a tree and the applicant was ordered to shoot him. the gun did not discharge and Lucky then stabbed the deceased 4 times with an assegai. They thereafter removed his eyes "so that the police cannot take pictures and see us through the eyes of the deceased".
Evidence was given at the trial that the deceased’s heart was cut out, cooked and eaten. This aspect is mentioned because the Committee had to consider whether the killing was what is commonly known as a muti-murder.
After considering all the evidence the Committee is satisfied that the murder was associated with a political objective. One of the factors leading to this conclusion is the fact that the trial judge found inter alia:
"They are victims of their environment. They have been born into an environment where political tolerance does not exist.----
I accept in his favour (Lucky Ntsheta’s favour) that he had previously been injured by one of the Inkatha supporters and that they had previously killed one of his own colleagues:… he was plainly the leader of the group".
The applicant at the time of the incident was 18 years old. The judge found him unintelligent (and the Committee had the same experience) "it is plain that he is a follower in every sense. I accept that he is easily influenced, and that he acted at all times under the influence of accused No. 5". Accused No 5 was Lucky Ntsheta, the ANC leader of the group at Tongaat.
The allegation that the offence was associated with a political objective and that he acted on instructions of his leader is not an after thought raised in order to pace the whole incident within the ambit of Act 34 of 1995. It was raised at the trial during May 1995 before Act 34 of 1995 was passed by Parliament.
The Committee records that notwithstanding efforts the identity of the deceased could not be traced.
The Committee is satisfied that the application meets with the requirements of Act 34 of 1995 and amnesty is GRANTED to the applicant in respect of the following offences:-
The murder of an unknown man during or about November/ December 1992 at Tongaat in the district of Inanda, and illegal possession of a firearm and ammunition on that occasion.
SIGNED AT CAPE TOWN ON THIS 16 DAY OF November 2000
______JUDGE S KHAMPEPE
______ACTING JUDGE C DE JAGER
______MR W MALAN AC/2000/208
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
______
PATRICK NHLANHLA MODIBEDI APPLICANT
(AM 5894/97)
______
DECISION
The applicant applies for amnesty in respect of the offences of public violence, kidnapping, assault and robbery which were committed on or about 15 October 1988 at or near Sebokeng.
At the time of the commission of the offences the applicant was a 17 year old youth who was a member of the Congress of South African Students (COSAS), a politically active organisation which was aligned to the African National Congress (the ANC).
On the day in question the applicant together with a number of other persons, referred to as comrades, hijacked a furniture truck in Zone 14 Sebokeng. They then drove the truck to Zone 7, Sebokeng, where they went to the houses of three other comrades who they regarded as being ‘sell-outs’ as they had testified as State witnesses in a trail of another comrade who was found guilty and sentenced to a long term of imprisonment. It was their intention to abduct the persons who they regarded as being sell-outs and to take them to Soweto where they would be subjected to a trial by their peers.
When in Zone 7 they first went to the house of one Ntaoleng. The house was locked and they smashed some window panes. They did not succeed in catching Ntaoleng. They then proceeded to the houses of Paseka George Motaung and Christina Nthabiseng Mololo which were next to each other. There they caught hold of and assaulted the said two persons. They put them in a truck against their will and then drove off to Soweto.
Before they reached their destination they were accosted by a police patrol. The applicant and some of his comrades fled the scene but were later arrested.
The applicant was charged and convicted and sentenced to undergo four years imprisonment.
The applicant was not an entirely satisfactory witness. He was, in certain respects, confused as to detail and sequence of events. We are, however, after careful consideration, of the view that the unsatisfactory features of the applicant’s evidence should not result in us finding that he has not made a full disclosure as is required by the provision of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 (the Act). He admitted to participating in the abovementioned events and associated himself with the commission of all the crimes. The unsatisfactory elements of his evidence may be ascribed to al lack of proper recollection probably due to the passing of time rather than to deliberate lies.
We are also satisfied that the whole incident was a series of acts committed with a political objective as envisaged by the provisions of the Act. The hijacking of the furniture truck was found by the trial court to be a political act and the evidence before us does not lead us to the conclusion that such robbery was committed for personal gain. The offences committed against the said Ntaoleng, Motaung and Mololo were committed by the applicant and his co-perpetrators in the belief that they were acting against persons who had collaborated with their political enemy.
We are accordingly of the view that the application succeeds and therefore the applicant is GRANTED amnesty in respect of public violence, the assault and kidnapping of Paseka George Motaung and Christina Nthabiseng Mololo and the robbery of a furniture truck all of which were committed on 15 October 1988 at or near Sebokeng.
We are of the opinion that Ntaoleng (whose house was damaged), Paseka George Motaung and Christina Nthabiseng Mololo (who were both assaulted and kidnapped) and the unknown owner and/or driver of the furniture truck are victims and this matter is referred to the Committee on Reparation and Rehabilitation for its consideration in terms of the provisions of the Act.
SIGNED AT CAPE TOWN THIS THE 16th DAY OF NOVEMBER 2000
SIGNED...... AC/2000/209
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
______
MQAMBELENI BUTHELEZI 1ST APPLICANT
(AM 6128/97)
BHEKINKOSI MKHIZE 2ND APPLICANT
(AM 6131/97)
TEBOGO MAGUBANE 3RD APPLICANT
(AM 6118/97
VINCENT KHANYILE 4TH APPLICANT
(AM 6124/97)
TIMOTHY STALS MAZIBUKO 5TH APPLICANT
(AM 6122/97)
JACK MEBELE 6TH APPLICANT
(AM 6119/97)
SONNY MICHAEL MKWANAZI 7TH APPLICANT
(AM 6120/97)
THOMAS LUKHOZI 8TH APPLICANT
(AM 7396/97)
MOSES MTHEMBU 9TH APPLICANT
(AM 7394/97)
MHLUPEKI TSHABANGU 10TH APPLICANT
(AM 7391/97)
SIPHO BUTHULEZI 11TH APPLICANT
(AM 7319/97) PETRUS MDINISO 12TH APPLICANT
(AM 6127/97)
MXOLISENI SIBONGELENI MKHIZE 13TH APPLICANT
(AM 6125/97)
PAULOS MCIKELENI MBATHA 14TH APPLICANT
(AM 6121/97)
RICHARD DLAMINI 15TH APPLICANT
(AM 6132/97)
VICTOR MATHANDENI MTHEMBU 16TH APPLICANT
(AM 1707/96)
SITHEMBISO MOUNTGOMERY
KUBHEKA 17TH APPLICANT
(AM 6126/97)
ANDRIES MATHANZIMA NOSENGA 18TH APPLICANT
(AM 2778/96)
______DECISION
______
Introduction :
1. The applicants have applied for amnesty in respect of an attack at Boipatong Township and at the informal settlement of Slovo Park in Vanderbijlpark, that took place on 17 June 1992. That attack was extremely violent. It left approximately 45 people dead including elderly people, women and children. Many more were injured. It was accompanied by widespread destruction of property and damage to houses and personal possessions. In addition, there was extensive looting and theft from the houses that were attacked.
2. Originally, there were 18 applicants. Mr Thomas Lukhozi, the 8th Applicant, subsequently withdrew his application. Mr Mxoliseni Sibongeleni Mkhize, the 13th Applicant, did not appear at the hearings and his application was accordingly struck off the roll on the last day of the hearing.
Messrs. Moses Mthembu and Petrus Mdiniso:
3. Before dealing with the rest of the Applicants we deal first with the applications of Messrs Moses Mthembu and Petrus Mdiniso, the Ninth and Twelfth Applicants respectively.
4. They testified that they did not take part in the attack and were therefore not guilty of any act which constitutes an offence. Their evidence was corroborated by some of the applicants. We find it inconceivable that if these applicants had in fact taken part in the attack and knowing full well that what will set them free is to tell this committee about their part in the attack, they would nevertheless come and tell the committee that they did not take part in the attack. On the evidence before us, and we must stress the evidence before us, we are satisfied that Messrs Moses Mthembu and Petrus Mdiniso did not take part in the attack and they are not guilty of any offence or delict in relation to the attack on Boipatong Township on 17th June 1992.
5. We conclude, therefore, that on the evidence before us, the applicants did not commit an act, omission or offence in respect of which amnesty could be granted to them as envisaged in section 20(1)(b) of the Promotion of National Unity and Reconciliation Act 34 of 1995, as amended, ("the Act"). It follows that they are not entitled to amnesty. Mr. Lowies, who appeared on their behalf, did not contend otherwise.
6. Yet we cannot ignore the fact that these applicants are persisting in their innocence even if this would lead to the refusal of their applications for amnesty. They could have chosen the easy way out and admitted having taken part in the attack, and this would probably have led to them being granted amnesty. They chose not to. Nor can we ignore the fact the their protestations of innocence find support in the evidence of some of the other applicants. Indeed we cannot ignore the fact that on the evidence before us they did not take part in the attack and are therefore innocent of any offence or delict. Yet they have been convicted of having taken part in the attack. However, amnesty is not available to the innocent, it is only available to the guilty.
7. It is understandable why both applicants came to this committee to seek amnesty. They have been convicted of offences relating to the attack and were sentenced to prison terms. They came to the committee in the hope that they would be granted amnesty. They had hoped that what they perceived to be wrong convictions for offences they never committed would be corrected by the Amnesty Committee. This was a mistake on their part. Amnesty is only available to those who have committed offences or delicts and who have complied with the Act. The applicants' remedy does not, therefore, lie in the amnesty process but it lies in an appeal. If their rights to appeal have been exhausted, they should consider approaching the President for pardon.
8. In these circumstances, their remedy lies in an appeal. If their appeal rights have been exhausted, their remedy lies in section 84(2)(j) of the Constitution which makes provision for the President to pardon or reprieve offenders and to remit any fines, penalties or forfeitures. In President of the Republic of South Africa and another v Hugo 1997 (4) SA 1 (CC) at para 45, the Constitutional Court referred to at least two situations in which the power to pardon may be important and said:
"There are at least two situations in which the
power to pardon may be important. First, it
may be used to correct mistaken convictions or
reduce excessive sentences and, second, it may
be used to confer mercy upon individuals or
groups of convicted prisoners when the
President thinks it will be in the public benefit for that to happen. In the first situation, it has
been recognised in many courts that it can play
an important role in enhancing justice within a
legal system. As Cooke P said in Burt v
Governor-General [[1992] 3 NZLR 672 (CA)]:
'(I)t must be right to exclude any lingering thought that the prerogative of mercy is no more than an arbitrary monarchial right of grace and favour. As developed it has become an integral element in the criminal justice system, a constitutional safeguard against mistakes.'"
9. Accordingly the applications by Messrs Moses Mthembu and Petrus Mdiniso must therefore, be REFUSED.
In the result, there are now fourteen (14) applicants whose
applications are the subject of this decision.
The Remaining Applications:
10. All the applicants are members of the IFP and at the time of the attack, they resided at KwaMadala hostel ("the hostel"), near Boipatong in Vanderbijlpark and which was owned by Iscor.
11. The applications are opposed by the relatives of the deceased and by the victims of the attack. They are opposed on the basis that, firstly, the applicants have not made a full disclosure of the relevant facts; and
secondly, the applicants have not satisfied the requirement of a political motive, in particular, having regard to the proportionality of their deeds and the motives of some of the applicants.
12. During the hearing a preliminary point was taken that, but for Mr Victor Mthembu’s application, the remaining applications did not comply with the formal requirements of the Act. After hearing argument on this issue, the committee unanimously ruled that all the applications complied with the formal requirements of the Act.
13. It is necessary at the outset to set out the background events against which these applications must be considered.
The Background Events :
14. The background events against which these applications must be considered are hardly in dispute. They amount to the following:
15. The Vaal Triangle was plagued by political violence in the early 1990’s. The conflict was primarily between the supporters of the Inkatha Freedom Party (:IFP") and the African National Congress ("ANC"). This violence affected most, if not all, townships in the Vaal Triangle including Boipatong and the informal settlement of Slovo Park. As a result of this violence, may IFP supporters fled the townships. They eventually sought refuge in an abandoned hostel. Although their initial occupation of the hostel was without the permission of Iscor, they were not evicted. Instead Iscor regularised their presence at the hostel. This was because some of the IFP members occupying the hostel were Iscor employees. As more and more supporters of the IFP fled from their houses in the townships, they sought refuge at the hostel. Other individuals who ran away from the townships for reasons such as crime or other conflicts also sought refuge at the hostel. In order to be accepted at the hostel, it was sufficient for such persons to allege persecution by comrades or ANC and to declare their willingness to joint or support the IFP.
16. It is necessary to understand the nature of the conflict between the supporters of the IFP and those of the ANC in the Vaal Triangle as well as the issues involved in that conflict.
17. This conflict must be distinguished from the political conflict between the liberation movements and the apartheid forces. It can be traced to the struggle for political control or political dominance of certain areas. In the course of this struggle, both sides to the conflict suffered severe casualties. This loss of lives led to an escalation of violence. A cycle of attack and counter-attack ensued with each side avenging the killing of its members. This violence pitted children against parents, friends against friends, neighbours against neighbours and relatives against relatives.
18. This violence forced people to flee the areas that were identified with their respective parties. In due course, this led to the emergence of so called "no go areas". The hostel was identified as an IFP area while Boipatong Township and Slovo Park informal settlement were identified as ANC area. Enemies were defined in terms of party affiliation and/or the area where they lived. It did not matter that you did not belong to or support either party. If you lived in an area that was perceived to be predominantly ANC, you were regarded as an ANC supporter. The violence perpetrated was indiscriminate. No distinction was made between men, women, children or elderly people. Areas were indiscriminately attacked.
19. As the hostels were perceived as IFP strongholds and thus sources of violent attacks against ANC supporters, the ANC called for the closure of the hostels. This call led to further escalations of violence.
20. It is in this context that the conflict between ANC supporters and IFP supporters in the Vaal Triangle must be understood.
21. The hostel became a "no go area" for ANC supporters, while the townships became a "no go area" for IFP supporters. Thus, the enemies of the IFP were the residents of Boipatong Township and Slovo Park, while the enemies of the township residents were the residents of the hostel.
22. Both sides suffered severe casualties in the course of this conflict. It is not necessary to set out the statistics of this violence. Suffice it to say that by May 1992, for example, it had been reported that over 50 people had been killed in political violence in the Vaal Triangle since the beginning of 1992 (City Press 24 May 1992). The applicants testified about members and supporters of the IFP who were killed in and around Boipatong in the months before the attack. There was also evidence of violence and attacks against township residents.
23. As a result of the political conflict in the Vaal Triangle, township residents set up Self Defence Units ("SDU") to patrol and protect themselves from attacks by IFP supporters. This was in line with ANC policy elsewhere in the country. Boipatong Township and Slovo Park had SDUs that patrolled the townships and set up barricades in the streets in order to prevent attacks including so called "drive-by" shooting. There were of course regular police and other security force patrols in and around the townships of he Vaal Triangle.
24. The deaths of IFP supporters at the hands of the township residents resulted in calls by hostel residents for an attack on Boipatong. They wanted to avenge the deaths of their members who had been killed by the Boipatong residents. They felt that they could no longer move freely in the Vaal Triangle because of these attacks. They put pressure on the hostel leadership to authorise an attack on Boipatong. It was this pressure that ultimately led to the decision to attack Boipatong and Slovo Park and the resultant killings.
25. It is against this background that the present applications for amnesty must be considered.
The Decision to Attack the Township Residents :
26. As indicated above, the leadership at the hostel was under pressure from the hostel residents to launch an attack on Boipatong and Slovo Park. The leadership at the hostel consisted of the leaders of Amabutho, the IFP Youth Brigade, IFP Senior Committee members and Hostel Residents’ Committee members. Mr Mqambeleni Buthelezi, the First Applicant, was the Chairperson of the Youth Committee at the hostel. Mr Bhekinkosi Mkhize the Second Applicant, was Induna Yamabutho (commander of the armed wing). As the leader of Amabutho, Mr Mkhize had the authority to authorise the attack. Mr Mqambeleni Buthelezi testified that a caucus meeting of the IFP leaders at the hostel was held. At this meeting, the idea that Boipatong be attacked was accepted by those present. No decision, however, was taken as to when this attack would take place and no planning or other details were discussed at that stage.
27. Mr Bhekinkosi Mkhize testified that prior to the attack, the residents of the hostel had approached him to establish what steps were being contemplated by the leadership of the hostel in view of he regular attacks on them by the residents of Boipatong. He testified that the residents were getting impatient and were putting pressure on him to come up with a solution. At one state, he consulted Prince Vanana Zulu ("Prince Zulu"), a member of the Zulu royal family. Prince Zulu who was a member of the Senior Committee in the hostel urged Mr Mkhize to wait and promised to discuss the matter with the Boipatong residents to urge them to stop the attacks on IFP members. Fearing that the residents would perceive him as an obstacle, Mr Mkhize felt compelled to take a decision. He testified that he and Mr Damara Chonco, since deceased, took the decision to attack Boipatong. However, the date of the implementation of this decision was noticed at that time. He further testified that on 17 June 1992 he and Mr Damara Chonco took the decision that Boipatong would be attacked that day.
28. There appears to be some conflict in the evidence as to when the decision to attack Boipatong was announced to hostel residents. This conflict can be attributed to at least three factors: First, there was confusion amongst the applicants as to the dates and the times of the various meetings at which the issue of the attack was discussed; Second, not all applicants attended all such meetings; and Third, it was general knowledge that the township that would be attacked was Boipatong as it was near the hostel. The reference to an attack was therefore, generally understood as a reference to an attack on Boipatong.
29. However, on the evidence, we are satisfied that there were at least three meetings at which the issue of the attack was discussed. At the first meeting the residents were getting impatient with the leadership and demanded to know what steps were being taken by the leadership to stop the attacks by the township residents. This was approximately two weeks prior to the attack. The second meeting was one at which the leadership urged the residents to get ready for an attack but the date of the attack was not given. This was on the Sunday prior to the attack. The third meeting was held on the evening of 17 June 1992 when it was announced that the day of the attack had arrived.
30. During the evening of 17 June 1992 hostel residents assembled at the hostel stadium followed a clarion call. At the stadium, they were addressed by Mr Mkhize who told them that the day for the attack had arrived. Women were not allowed at the meeting. The male residents were ordered to return to their rooms and fetch their weapons. They did so. Some were given firearms from a pile of firearms that had been brought to the stadium by Mr Damara Chonco. Once they had reassembled at the stadium, they were sprinkled with intelezi to give them strength and courage to face the enemy. Thereafter, they were ready for the attack.
The Attack :
31. An estimated group of between 300-500 armed men then left the hostel to attack Boipatong Township and the neighbouring informal settlement of Slovo Park. They carried an assortment of weapons including spears, knob sticks, pangas, axes, AK-47’s shotguns and handguns. All the applicants, save for Mr Mqambeleni Buthelezi, testified that they were part of this group. When the attackers reached an area of open veld near Boipatong, they stopped under a tree where they were divided into groups. They then proceeded to enter Boipatong Township from different points. Some entered through Moshoeshoe Street, others through Lekoa Street and others through Mzimvubu Street.
32. Upon entering the township, the attackers first encountered groups of SDU members. Some shooting took place. The SDU members fled. The IFP attackers pursued them and thereafter also started attacking other residents. The attack was extremely violent. It is estimated that it left approximately 45 men, women and children dead, and many more injured. The attack was accompanied by widespread damage to property and looting. The attackers followed several routes and caused damage to many of the houses and shacks along the way. They entered some houses and shacks, assaulted and murdered residents.
33. All the applicants, save for Mr Mqambeleni Buthelezi, admitted that they took part in this brutal attack. They described how they were armed and what they did. Some described how they were armed and what they did. Some described in sordid detail the violence that they perpetrated on the residents. There can be little doubt that the conduct of the attackers and those applicants who took part in the attack constituted both offences and delicts of an extremely violent nature. All those who took part in the attack acted with a common purpose to attack the township and commit the various crimes that were committed during the attack. We are satisfied, therefore, that the conduct of those applicants who took part in the attack constituted offences and delicts as envisaged in the Act.
34. Different considerations apply to Mr Mqambeleni Buthelezi. He testified that he had been at a meeting held approximately two weeks prior to the attack. In response to the question whether he associated himself with the act of killing the people in Boipatong on 17 June 1992, he replied:
"I have already explained that I was one of those persons who had been angered by what the people of Tserela had been doing and I was in favour of them being attacked because I did not understand why they were attacking us, because we were all fighting the same government, the apartheid government. It was the aim of all of us to dismantle the apartheid government, therefore, we decided that they should be attacked because we were no longer free to carry out our activities as an organisation."
Tserela refers to Boipatong Township. When specifically asked as to who he was referring to when he said "we decided that they should be attacked", he replied:
"Myself as a leader, the people, the residents of
the hostel were complaining about the situation. As
a leader you have a responsibility to look into
people’s complaints and take appropriate action. As leader, I realised that we were losing our members
because we were now intimated. I personally felt that
the people of Tserela should be attacked. I even told
my colleagues that these people should be attacked."
35. Mr Buthelezi also testified that he ‘was in favour of the attack, because of the situation, the difficulties that we were experiencing." When he was asked whether he would have joined the attackers if he had not been feeling ill, he replied "yes".
36. It must be recalled that the hostel residents had been putting pressure upon the hostel leadership to take action against the attacks by the residents of Boipatong. The decision which the leadership took that Boipatong Township should be attacked was a response to this pressure. It is in this context that the evidence of Mr Buthelezi must be understood. Seen in this context, the import of his evidence is that the leadership at the hostel of which he was a part, took a decision to attack Boipatong Hostel. He was in favour of this decision and he even suggested the attack. No date for this attack was fixed. He did not take part in the attack because he was ill. Had it not been for his illness, he would have taken part in the attack. He associated himself fully with the attack and with the motives of those who participated in the attack.
37. It is trite that in cases of common purpose the act of one participant in a crime is imputed, as a matter of law, to another participant. It is also trite that common purpose may be derived from an antecedent agreement or can be inferred from the surrounding facts which demonstrate that the person actively associated himself or herself with the motives of those who were actually perpetrating the crime – S v Safatsa and Others 1988 (1) SA 868 (A) at 898 A-C. where there is an antecedent agreement to commit a crime it is not necessary for the individual subsequently charged with the crime to have taken part in its planning or commission. Even if the individual did not know that it was going to be committed, as long as the individual was a party to the agreement and does not evince an intention to disassociate himself or herself from the original agreement, that individual will be guilty of the crime committed following the agreement that was concluded to which he or she was a party. Compare R v Motaung and Another 1961 (2) SA 209 (A) at 210 G-211C.
38. Here Mr Buthelezi testified that he took part in the decision to attack Boipatong. He supported the decision and in fact he suggested that they should be attacked. He associated himself with the attack before and after the attack. The only reason whey he did not take part was because he was ill. In our view, there is nothing to indicate that Mr Buthelezi disassociated himself from the original agreement. On the contrary he associated himself with the original agreement at all material times. We are, therefore, satisfied that the conduct of those who took part in the attack must, as a matter of law, be imputed to him on the basis of common purpose.
Was the Attack Associated with a Political Objective?
39. The next question to determine is whether the offences or delicts to which these application relate were acts associated with a political objective committed in the course of the conflicts of the past. It was submitted on behalf of the victims that some of the acts committed by some of the applicants were disproportionate to the political objective sought to be achieved and that, therefore, their acts ere not associated with a political objective. In relation to the others, it was submitted that some of the individual attackers had motives different from that which the attack sought to achieve. For that reason, it was submitted, their acts were not associated with a political objective. 40. Section 20(1)(b) of the Act requires that:
the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsections (2) and (3)".
41. The basic enquiry, therefore, is whether the offences or delicts committed by the applicants were committed with a political motive. To assist in this enquiry subsection (3) of section 20 sets out the criteria to which reference should be made in determining "whether a particular act, omission, or offence is associated with a political objective". Seen in this context, subsection (3) was intended to assist the committee in determining whether a delict or an offence is associated with a political objective by providing criteria to which reference is to be made. The reference to the proportionality of the act, omission or offence to the objective pursued in subsection 3(f) must be seen in this context. Proportionality is not a separate and independent requirement for the granting of amnesty. It is part of the enquiry into whether the offences or delicts were committed with a political motive. Where, as here, the acts, omissions or offences were politically motivated and the context in which the acts were committed indicates that they were committed in the course of, or as part of, a political disturbance or event or in reaction thereto, proportionality acquires less significance than it would otherwise have.
42. It is necessary, therefore, to determine the extent to which the criteria in subsection (3) have been satisfied. The motive for the attack was clearly political. The attack took place in a political context. It was committed in the course of, or as part of, the political conflict between the supporters of the ANC and the supporters of the IFP. It was directed at the residents of Boipatong and Slovo Park who were considered to be the political enemies of the residents of the hostel. The attack was carried out in the execution of, or on behalf of, or with the approval of, hostel residents and some of their leaders who were IFP members or supporters. The applicants were all members of the IFP and were residents of the hostel. There is a clear relationship between the attack and the political objective that the attackers sought to achieve. They wanted to avenge the death of other IFP supporters at he hands of township residents. They also wanted to send a message that such attacks on IFP hostel dwellers would not be tolerated and should cease. All the residents of Boipatong regardless of their age or sex were perceived as enemies and were therefore considered to be legitimate targets of the attack.
43. In all these circumstances we are satisfied that the delicts and offences that were committed by the applicants relate to acts associated with a political objective committed in the course of conflict between the supporters of the ANC and the supporters of the IFP. There can be no question that all the applicants who took part in the attack did so on the basis that they were attacking their enemies. That some of the applicants had had their relatives killed and, therefore, wanted to avenge the death of their relatives does not, in our view, detract from the objectives of the attack, which were politically motivated. Indeed, even those applicants who wanted to avenge the death of their relatives did so within the political context of the conflict between the supporters of the ANC and the supporters of the IFP. There was no suggestion that those relatives had been killed for any reason other than that they were members or supporters of the IFP. The attackers believed that their relatives had been killed because they were IFP members or supporters. They were, therefore, killed in the course of a political conflict and the revenge was a reaction to that killing and this part of the same conflict.
44. It now remains to consider whether the applicants have satisfied the third requirement, namely, that of full disclosure.
Have the Applicants Made a Full Disclosure:
45. On behalf of the objectors, it was submitted that the applicants have not satisfied this requirement. This submission was based on the evidence of Mr Andries Mathanzima Nosenga, the Eighteenth Applicant, and the evidence on behalf of the victims to the effect that the police were present and took part in the attack. In their evidence, all the applicants denied that the police were present during the attack. We deal first with the evidence of Mr Nosenga.
The Evidence of Mr Andries Mathanzima Nosenga:
46. Mr Nosenga was the last applicant to testify. He testified that he had arrived at the hostel during 1991 after he had escaped from ANC comrades in the Sebokeng where he had been accused of burning down the garage of one Mr Nkutha. Upon arrival at the hostel, he joined the IFP. While at the hostel he took part in some attacks on ANC supporters. These included attacks at Small Farm, Sebokeng zone 12 and at Boipatong. He further testified that he was part of the group of armed men who attacked Boipatong on 17 June 1992. He was armed with an AK-47. He described the events leading to the attack and his role during the attack. His version differed in a number of material respects from that given by the other applicants. He is the only applicant who testified about the presence of the police during the attack.
47. Whether Mr Nosenga was present during the attack is a matter that was hotly disputed by the other applicants. The other applicants denied that Mr Nosenga was present at the hostel when the attack took place. They testified that he only came to live at the hostel long after the attack had taken place. The central issue in relation to the evidence of Mr Nosenga is whether his evidence is reliable and credible. The issue is one of credibility.
48. Mr Nosenga was an appalling witness to say the least. He contradicted himself in a number of material respects. Certain aspects of his evidence were not only unsatisfactory but also inherently improbable. He manufactured replies whenever he was confronted with earlier inconsistent evidence. If he could not manufacture a reply he would blame the people who interpreted for him or claim that he did not understand the question or blame the headphones. We need only refer to some aspects of his evidence to illustrate this.
49. He contradicted himself on the events: at the hostel prior to the attack; on the way to the attack; during the attack; and subsequent to the attack. These contradictions are also apparent when his evidence is compared to the statements he had made previously. Initially he sought to distance himself from those statements but it was quite clear that the signatures and the names on the statements were his. He sought to blame the inconsistencies on the interpreters. Yet he admitted that the statement taken from him by the officials of the TRC was read to him sentence for sentence and he corrected it where it was inaccurate. He could not explain the inconsistencies in that statement which he claimed he had corrected.
50. All the other applicants testified that Mr Bhekinkosi Mkhize was the leader of the attack and was assisted by Mr Damara Chonco. Mr Nosenga not only did not know Mr Mhkize and what his position was at the hostel but he also denied that he was the leader of the attack. It is common cause that the day after the attack the police sealed off he hostel and all the residents were confined to their individual rooms. Mr Nosenga knew nothing about this. Mr Nosenga testified that had it not been for torture by the police and his subsequent conviction he would not have revealed the Sebokeng attack and what happened in the attack. Yet, he was prepared to volunteer information about Boipatong and in respect of which he was neither arrested not convicted. He testified that in order to conceal the true identity of the persons who took part in Sebokeng he was prepared falsely to implicate innocent people.
51. The contradictions and the inherent improbabilities in the version testified to by Mr Nosenga must be viewed against the circumstances under which he came to join the other applicants during the hearings. He was not amongst the original applicants but only joined them after the hearings had commenced. He gave us a reason for appearing at that stage the fact that after he had seen he hearings on television he became concerned as to why he had not been called to the hearings as he had made an application for amnesty in relation to the Boipatong attack. He therefore contact certain persons to alert them to the fact that he was one of the applicants and that he wanted to be assisted in attending the hearings. However, he later denied having contacted anyone but testified that all the persons who came to him did so of their own accord. He later gave details of persons who he claimed he contacted by telephone and whom he requested to come and assist him with his application. In this regard, he mentioned the name of one Ms Patience Molekane of the ANC. When he was called upon to explain this apparent inconsistency, he gave conflicting explanations. He first said he was afraid of disclosing the fact that the ANC had come to visit him. When it was put to him that some of the people who had contacted him were lawyers he changed his version to say he had forgotten that he had contacted these persons. He repeatedly stated that he decided to make the application after he had see the applicants not telling the truth and because he was involved in the attack. Yet, in the same vein he testified that when he saw the applicants testify he had already made his application for amnesty.
52. Having regard to the numerous contradictions and the inherent improbabilities in the evidence of Mr Mosenga and the unsatisfactory nature of his evidence, we have no hesitation in rejecting his evidence as untruthful. We reject his evidence where it conflicts with that given by the other applicants. Accordingly, his application falls to be REFUSED as failing to meet the requirements of the Act.
The Evidence on behalf of the Victims:
53. In assessing and evaluating the evidence of various witnesses who testified, we bear in mind that the events about which they testified occurred some 7 years ago. Memory lapses are therefore to be expected. In addition, they were testifying to events that were moving fast and in circumstances under which the witnesses were subjected to a traumatic situation. It was at night and dark and the circumstances were not ideal for a proper opportunity for observation. Another important factor to bear in mind is that the witnesses have told their stories repeatedly and have over the course of the years discussed these events amongst themselves and with others. The tendency to reconstruct and add in perceptions and aspects heard from others is, in the circumstances, difficult to avoid.
54. The evidence of the victims who testified to having seen white men with blackened faces and/or wearing balaclavas is fraught with difficulties. There are material inconsistencies in their evidence. The circumstances under which they claim to have made the observations were not ideal for accurate observation. In addition, the evidence of some is inconsistent with the earlier statement that they made. However, even if we were to accept their evidence that they saw white men with blackened faces, such evidence does not demonstrate that the applicants were not telling the truth when they testified that there were no white men in the groups in which they were. In this regard, there was no suggestion in the evidence that any of the applicants were seen in the vicinity of these white men with blackened faces. There were approximately 300-500 attackers some of whom wore balaclavas, who descended on the township. This group later split into smaller groups. None of the victims identified any of the applicants as being where these white men were seen. Nor was there any evidence to suggest that the applicants would have seen these white men. In the result, we are unable to find as a matter of probability that the applicants failed to disclose the presence of white men with blackened faces and/or wearing balaclavas during the attack. 55. Some victims, notably Mr Baloyi, testified about the presence of police and/or security force vehicles during the attack. It is common cause that shortly before the attack the police patrolled the township removing barricades and dispersing SDU members. Different time estimates were given in evidence as to the last time that the police were seen in the township immediately prior to the attack. Mr Ragatlhane testified that he saw the police at approximately 21h50. the memorandum submitted on behalf of the victims estimated the time of the police dispersing the SDUs as between 19h00 and 21h00. On the other hand, Mr Baloyi testified that he saw a "Koyoko" at about 22h00. Affidavits by several police, army and Iscor security personnel speak of reports of intense gunfire and trouble at Boipatong around 21h00. They also mention seeing groups of attackers returning towards the hostel shortly after 22h15. Thus on the evidence it is not possible to establish the precise time when the attack commenced, nor is it possible to say with certainty how long it lasted. On the probabilities, however the attack must have commenced sometime after 21h00. it must have ended by 22h15 and accordingly it probably lasted less than an hour and a half.
56. It is further common cause that shortly after the attack there was chaos and confusion in the township. Residents were moving about the streets in search of their relatives. Others were coming out from their hiding places such as the refuse dump on the outskirts of the township. The police and the ambulances arrived shortly after the attack to remove the dead and the injured. It is therefore not improbable that there would have been groups of people in the streets at about the same time that there were police vehicles and ambulances. In our view, it is against this background that the evidence given by the victims relating to the presence of police vehicles during the attack must be understood.
57. Mr Baloyi testified that he saw a police vehicle escorting the attackers out of the township. However, a closer examination of his evidence demonstrates that what he saw was a group of attackers who were in the veld and an army or police vehicle directing its headlights towards this group of attackers. He also testified that he saw two or three other police or army vehicles that had been parked near a tree, proceeding towards Metal Box where they joined two other Koyokos and firing a shot that flared and lit up the sky. This evidence is not inconsistent with that given by the applicants. They testified that as they were in the veld returning to the hostel they saw an army vehicle and they hid themselves in the grass. This vehicle made a U-turn and directed its headlights at them, apparently being suspicious and thus investigating. The vehicle then proceeded in the direction of Metal Box where it joined two other army or police vehicles. A shot was fired into the sky from one of these vehicles and a flare lit imp the sky. In our view, the two versions are not inconsistent in spite of the differences of interpretation. On the evidence before us, we cannot say that the only reasonable inference to draw is that the police vehicles that Mr Baloyi saw accompanied the marchers. Accordingly, on the evidence of Mr Baloyi we are unable to find that the police or army vehicle was accompanying the attackers.
58. The presence of the police shortly before the attack and shortly after the attack may easily have led the township residents to conclude that the attackers were accompanied by the police. In particular the chaotic situation and the confusion that prevailed shortly after the attack, with the residents moving about the streets in search of their relatives and the presence of the police to remove the e dead and assist the injured, may well have fortified such belief in the mind of the residents that the police indeed accompanied the attackers. It is probable, therefore, that the police or army vehicles that were seen by the victims who testified were those that either patrolled immediately prior to the attack or those that came shortly after the attack to remove the dead the injured. In the result, we are unable to say, as a matter of probability that the attackers were accompanied by police or army vehicles. It follows, therefore, that we cannot find that the applicants failed to disclose the presence of police or army vehicle during the attack.
59. There is one aspect on the issue of the involvement of the police in the attack that we must address and which was alluded to in argument on behalf of the victims. There were regular police patrols in the Vaal townships, including Boipatong. The police knew that there was a great deal of animosity between the township residents and the hostel residents. Hence patrols were conducted in the vicinity of the hostel as well. Yet a group of approximately 500 armed men was able to proceed to the township, carry out the attack and return to the hostel undetected. The timing of the attack and lack of detection is indeed a cause for concern. This strongly suggests that leaders of the attackers had information on the movements of the patrols and that it would be safe if the attack was launched at the time and date that they selected. We need not speculate on how such information could have been obtained. Suffice to say that there is no credible evidence to suggest that there was any conspiracy between the leaders of the attack and the police in this regard. Nor is there any evidence to suggest that the applicants knew of such conspiracy if one existed. All that is there is a suspicion which does not rise to the level of probability. In the result we cannot find that as a matter of probability the applicants failed to disclose any conspiracy.
60. The final aspect on the issue of full disclosure related to the presence of Prince Zulu. The applicants testified that he was not present during the attack. Mr Baloyi testified that he saw Prince Zulu during the attack and that prince Zulu called out to one of his sons. However, in the statement that Mr Baloyi made to the police there is no mention of Prince Zulu coming to the house, calling for his sons and attacking his next door neighbour. When it was put to Mr Baloyi that Prince Zulu was not present during the attack, his reaction was: "How could he be absent as a leader?" This reaction suggests that according to Mr Baloyi, Prince Zulu should have been there because he was a leader. However, Mr Baloyi was unable to explain the inconsistency between his evidence and the statement to the police relating to the presence of Prince Zulu. Nor could he explain why the memorandum which was submitted on behalf of the victims made no mention of Prince Zulu having been present during the attack.
61. Mrs Elsie Buwa testified to being attacked by Prince Zulu. She says she knew him and describes the attack by Prince Zulu on her. She could not explain why this aspect was missing from her statement that had been made previously to the police. In any event, she does not identify any of the applicants as being present or in the vicinity during Prince Zulu’s attack on her.
62. The evidence of Mrs Pulane Hilda Monokane suggests that a person by the name of Zulu was present during the attack. This witness was in our view reliable. She did not exaggerate her evidence. However, her evidence in our view does not take the matter any further.
63. In all the circumstances, we are unable to say the applicants are not telling the truth when they say that prince Zulu was not present during the attack. There was no suggestion that Prince Zulu was seen in the vicinity of any of the applicants. On a conspectus of the evidence, we are unable to find any basis from which we can find that the applicants should have been aware of the presence of Prince Zulu at the places where Mr Baloyi, Mrs Buwa and Mrs Monokoane testified they heard or saw him.
64. The comments made in paragraph 53 above in relation to the witnesses on behalf of the victims are also applicable to the applicant’ testimony. We cannot say that the testimony of all the applicants was without difficulties. The evidence of some of the applicants was not entirely satisfactory, in particular on whether Prince Zulu was at the hostel at the time of the attack. However, on a broad evaluation of their testimony we are satisfied that their evidence was consistent with the probabilities and that the unsatisfactory aspects in the evidence of some do not warrant a finding that they did not make a full disclosure of all the relevant facts.
65. In the result, we are satisfied that the remaining applicants have complied with the requirement of full disclosure. Conclusion:
66. In the event we find that:
1. The following applicants have complied with the requirements of the Act and that they are GRANTED amnesty:
Mqambeleni Buthelezi - (AM6128/97)
Bhekinkosi Mkhize - (AM6131/97)
Tebogo Magubane - (AM6118/97)
Vincent Khanyile - (AM6124.97)
Timothy Stals Mazibuko - (AM6122/97)
Jack Mbele - (AM6119/97)
Sonny Michael Mkwanazi - (AM6120/97)
Mhlupeki Tshabangu - (AM7391/97)
Sipho Buthelezi - (AM7319/97)
Paulos Mcikeleni Mbatha - (AM6121/97)
Richard Dlamini - (AM6132/97)
Victor Mthandeni Mthembu - (AM1707/96)
Sithembiso Mountgomery Kubheka - (AM6126/97)
In respect of acts, omissions or offences committed during the
attack at Boipatong Township and Slovo Park informal
settlement on 17 June 1992, except as provided for in paragraph
67 below;
2. The following applicants have not complied with the requirements of the Act and they are not entitled to amnesty:
Andries Mathanzima Nosenga - (AM2778/96)
Moses Mthembu - (AM7394/97)
Petrus Mdiniso - (AM6127/97)
Their applications for amnesty are REFUSED.
67. There is nothing in evidence to suggest that part of the motive for the attack was to steal the property of the residents. Those who did so, therefore, did so for personal reasons and their acts were consequently not politically motivated. Accordingly, amnesty CANNOT BE GRANTED in respect of such acts. 68. The Committee is of the opinion that the relatives and dependants of the deceased persons referred to in Exhibit "O" are victims and they are accordingly referred to the Reparation and Rehabilitation Committee in terms of section 22(1) of the Act.
69. The Committee is of the opinion that the persons referred to in Exhibit "O" as having been injured or whose property has been destroyed, are victims and they are accordingly referred to the Reparation and Rehabilitation Committee in terms of section 22(1) of the Act.
70. During the course of the hearing the Committee was informed that other people were injured or had property destroyed during the attack. However, none of these persons have testified, attested to affidavits or been mentioned in the documentation before us and accordingly we have no details of such people. Nevertheless, we are of the opinion that should they come forward and satisfy the Reparation and Rehabilitation Committee that they were injured or suffered loss during the incident, they would be entitled to be treated as victims in terms of the Act.
SIGNED at CAPE TOWN on this 24 day of November 2000
______
JUDGE S NGCOBO
______
ADV S SIGODI
______
MR J B SIBANYONI
______
MR I LAX AC/2000/210
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
______
HENDRICK RAKGOTHO APPLICANT
(AM 0647/97)
______
DECISION
The Applicant applies for amnesty in respect of the murder of Violet Masemola, which occurred during, or about 1990 at Matempule, a village in the Vaalbank area, approximately 40 kilometres from Warmbaths.
The Applicant joined the African National Congress ("the ANC") during 1988. He was, during 1990, elected as a member of the Matempule Civic Committee. The Committee consisted of thirteen members of the ANC. The chairman of the Committee was one Koos Mphela.
Violet Masemola ("the Deceased") was suspected of practising witchcraft. She was seen one night sprinkling water on the road and when questioned about this she stated that the water was being sprinkled to prevent ANC members attending meetings. It was also believed that certain ANC members in the area had died because of witchcraft.
A resident’s meeting was called and at the meeting it was decided that the deceased should be brought to the meeting. Koos Mphela instructed the Applicant and four other members of the Civic Committee to fetch the deceased. The five of them went to the deceased’s house. They entered and spoke to her. After a while they heard a crowd outside. The residents of the village who had been at the meeting had come to the deceased’s house. The Applicant exited the house with the deceased. The outbuildings were on fire. Petrol was thrown over the deceased and she was set alight. She died as a result thereof. The Applicant was not personally involved in either pouring petrol over the deceased or setting her alight. He did, however, associate himself in the attack upon the Deceased.
Some time thereafter the Applicant and a number of other persons were arrested and charged with the murder of the deceased. The Applicant was the only person who was convicted and he was sentenced to undergo ten years imprisonment.
Certain contradictions exist between the testimony given by the Applicant t the hearing of this matter on the one hand and the contents of his application form and a written statement signed by himself on the other. Both the application form and the written statement were written in English. The Applicant testified that he cannot read English and that the application form and the statement were not completed or written in English. The Applicant testified that he cannot read English and that the application form and the statement were not completed or written by himself. He therefore cannot vouch for the correctness of the information contained in those documents and insists that the testimony given by himself at the hearing is the correct version of events.
There is no other evidence before us, other than the evidence of the Applicant, as to the events which took place on that fatal day. The explanation given by the applicant as to the previous contradictory statements is reasonably possibly true and we therefore accept his testimony given at the hearing as being truthful. We are accordingly satisfied that the Applicant has made a full disclosure of all relevant facts. It is clear from the evidence of the Applicant that there was at that time a widespread belief in witchcraft amongst the residents of Matempula, the Applicant included. We accept the evidence that the Applicant and the other members of the Civic Committee also believed that the deceased was acting against the ANC leadership in the village and that she was using her powers to undermine the ANC. We also accept that the acts performed by the Applicant on that day were pursuant to instructions given to him and were not done on his own initiative.
Although the belief in witchcraft was prominent in the motivation of the deceased’s murder, we are satisfied, on a consideration of the evidence before us, that they, and the Applicant in particular, also had a political objective as they believed that the deceased constituted a threat to the ANC and its members in the area. We, in the circumstances, are of the view that the application should succeed and the Applicant is therefore GRANTED amnesty in respect of the murder of Violet Masemola which took place during or about 1990 at or near Matempula.
We are of the view that Salomina Maphoso and Nkonto Ngwenya, the deceased’s next-of-kin, are victims and this matter is referred to the Committee on Reparation and Rehabilitation for its consideration.
DATED at CAPE TOWN this 21 day of November 2000
______
JUDGE S M MILLER
______
ADV N SANDI
______
MR W MALAN AC/2000/211
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
______
LAZARUS KHAZAMULA MTHETHWA APPLICANT
(AM 6601/97)
______
DECISION
The Applicant applies for amnesty in respect of the murder of Alec Mashaba which was committed on 13 July 1986 at or near Tembisa.
At the time in question the Applicant was a supporter of the African National Congress ("the ABC") and was a member of the Tembisa Youth Congress, the chairman of which was one Peter Chauke.
On 13 July 1986 the said Chauke arrived at the Applicant’s home. He was in the company of approximately forty persons who were all "comrades". He informed Applicant that they were going to fetch a person who was a police informer and that they were going to subject the informer to a trial. He instructed the Applicant to accompany them.
They then proceeded to the house of Alex Mashaba ("the deceased"), who was the suspected informer. Some of them, including the Applicant, entered the house and abducted the deceased. He was the taken to Welamlambo Section, Tembisa, where a trial was held by the members of the Executive Committee of Welamlambo. The deceased was found guilty, it being decided that he was responsible for the death of one Sonnyboy who was killed by the police after they received information from the deceased concerning Sonnyboy.
The deceased was then taken by the group, including the Applicant, to Etafeni Hostel where he was burnt to death by the so-called necklace method. The Applicant did not actually participate in the burning of the deceased but stood by as a witness to the whole incident and associated himself with the actions of the perpetrators.
The Applicant, together with a number of other persons, was later arrested and charged with the murder of the deceased. He entreated his bail and left the country before his trial. He joined Umkhonto weSizwe when he was abroad. He, to date, has not stood trial in respect of the murder of the deceased.
The application for amnesty is not opposed.
We are satisfied that the Applicant has made a full disclosure of all the relevant facts relating to the incident. We are also satisfied that the murder of the deceased was an act committed with a political objective as envisaged by the provisions of section 20 of the promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"),
The Applicant is accordingly GRANTED amnesty in respect of the murder of Alec Mashaba which was committed on or about 13 July 1986 at or near Tembisa.
We are of the opinion that Betty Mashaba, the mother of the deceased, and Lucky Mashaba, the brother of the deceased, are victims and this matter is referred to the Committee on Reparation and Rehabilitation for its consideration in terms of the provisions of the Act.
DATED at CAPE TOWN this 21st day of November 2000
______
JUDGE S M MILLER
______
JUDGE N J MOTATA
______
ADV N SANDI AC/2000/212
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
______
EMMANUEL NKOSINATHI MAVUSO APPLICANT
(AM 7921/97
______
DECISION
______
The Applicant applies for amnesty for the murder of Michael Mcetywa ("the deceased") on 22 November 1993 at Pongola, KwaZulu-Natal. He also applies for amnesty in respect of the attempted murder of an innocent bystander who was shot and wounded in the incident as well as the unlawful possession of arms and ammunition. Applicant was convicted and sentenced to long term imprisonment pursuant to the incident. The application is opposed by the next-of- kin of the deceased.
The Applicant and a number of other witnesses testified at the hearing which ran for a considerable period of time. There were wide-ranging disputes of fact in the various versions presented to us. Little purpose would be served by giving a detailed exposition of all the issues in contention, most of which have been dealt with in helpful written argument submitted on behalf of Applicant and the next-of-kin of the deceased and by the leader of evidence. The following summary of the salient points of the evidence will suffice for the purposes of this decision.
At all material times, Applicant was a member of the Inkatha Freedom Party ("IFP") employed as a security guard at the Bison Board factory in Piet Retief, KwaZulu-Natal. According to his version he was approached by a fellow employee, Philemon Mtungwa ("Philemon") who arranged for Applicant to attend a meeting with Amos Mtunga ("Amos"), Philemon’s brother. Amos was an IFP member of parliament who frequently addressed public meetings to the knowledge of Applicant. Applicant and Philemon travelled from Piet Retief to Pongola where the meeting took place at Amos’ house. Applicant was informed that certain members of the African National Congress ("ANC"), including the deceased who was its local chairperson, were causing problems for the IFP and had to be killed. Applicant was ordered to execute the assassinations. Later in the day Applicant, Amos, Philemon and a number of other persons held a meeting at the Wimpy Restaurant in Pongola where the assassinations were discussed further. The following day, Applicant was unsuccessful in his attempts to execute the plan. A day later he returned to Pongola where he shot and killed the deceased. He was arrested soon afterwards and was eventually convicted and sentenced as pointed out above. He was assisted during his trial by members of the group of conspirators whom he met at the Wimpy restaurant.
A number of persons implicated by Applicant, including Amos and Philemon, testified at the hearing contradicting the version of Applicant. They basically denied having been involved in a conspiracy to kill the deceased or to have given orders to Applicant to kill the deceased. Suffice it to say that none of these witnesses nor the Applicant has made an exceptionally favourable impression on us. There are valid points of criticism that can be raised in regard to all these versions, most of which are dealt with in the written argument. No useful purpose would be served by repeating these submissions, save to point out that it is common cause in the written argument that the evidence as a whole established the complicity of all the implicated parties in the planning and execution of the assassination of the deceased. We merely point out that we are in agreement with this submission. There are further facts established in the evidence that are important to deciding the application, which need now to be dealt with. According to the acceptable evidence there was no political conflict of any note in the Pongola area between the ANC and IFP prior to the murder. There was, however, considerable conflict between the community and taxi operators to effect large increases in fares. The ANC was seen to be leading the resistance. The deceased and the two other victims identified for assassination were perceived to be actively involved in this regard. A majority of the persons involved in the conspiracy to kill the deceased were also involved in the taxi industry. Their involvement in the IFP, however, was peripheral at best. One of them was a member of the Pan Africanist Congress, a liberation movement on the same side of the South African political spectrum as the ANC. Although Amos could be described as having enjoyed a relatively high profile within the IFP, he was clearly also associated with the taxi operators in that he publicly supported their cause during the conflict.
Having regard to the totality of the evidence and the factors referred to, we are satisfied that the assassination was not in fact related to any political conflict in the area. In all probability the attack was linked to the taxi conflict, although it is not necessary for us to finally decide this issue in view of the decision to which we have come on the matter. The issue which does arise for consideration, however, is the effect of the evidence of Applicant that this is what the group of conspirators told him and that to his mind he was executing an order from the IFP to assassinate a political enemy. It needs to be pointed out in this regard that one of the requirements to be complied with by an amnesty applicant is that the offence in question should constitute an act associated with a political objective as envisaged in sections 20{2) and (3) of the Act. The provisions of these two subsections have to be considered separately.
Insofar as section 20(2) is concerned, our finding that the evidence does not establish any ANC/IFP conflict in the area in question results in the situation that section 20(2)(f) is the only provision which possibly apply in the instant case. It should be pointed out in this regard that where there are reasonable grounds for the relevant belief referred to in section 20(2)(f), the true state of affairs are irrelevant insofar as the provisions of section 20(2) are concerned. This issue has to be decided by evaluating the evidence relevant to Applicant’s state of mind and through an analysis of the provisions of section 20(2)(f). The relevant evidence was to the effect that Applicant was an ordinary IFP member from a neighbouring town who did not know any of the intended victims, one of whom was the ANC chairperson in Pongola – We accept, without deciding, for purposes of this analysis that Applicant was informed by Amos, a well-known IFP leader in the area, that the victims were political enemies whom the former had to assassinate and that Applicant could reasonably have concluded in the circumstances that the order emanated from the IFP. The question for decision, however, is whether this is sufficient to comply with the relevant provisions of section 20(2)(f), which are to the following effect :
"(2) In this Act … ‘act associated with a political objective’ means any … offence… committed … by.
(f) any person referred to in paragraphs (a), (b, (c) and (d), who on reasonable grounds believed that he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority;"
(emphasis supplied)
For present purposes, the only relevant category of person is that referred to in paragraph (a) of section 20(2), namely "any member or supporter of a publicly known political organisation". The Applicant would fall into this category only for the purposes of section 20(2)(f). The section requires further that such a person should believe that "he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority". It is clear that section 20(2)(f) only caters for a strictly circumscribed category of people, more particularly those persons under a particular duty and who enjoy specific authority in the relevant organisation.
As pointed out above, Applicant was an ordinary member of the IFP who held no specific position within the organisation. No case has been made out that Applicant was under any duty or enjoyed any authority within the organisation. There is no indication that Amos could impose any duty or confer any authority upon Applicant. He was not the chairperson of the IFP in the area. Amos has in fact vehemently disputed Applicant’s evidence and has adopted an adverse position towards Applicant’s case. It is accordingly doubtful whether the application complies with the provisions of section 20(2)(f). However, given the fact that the matter can be decided on a basis which obviates the need to do so, we decline to make a final decision on the proper interpretation of section 20(2)(f) and its application to the peculiar facts of the matter.
The application also needs to be evaluated against the criteria set out in section 20(3). This requirement is distinct from and additional to the locus standi requirement set out in section 20(2). Section 20(3) sets out the factors to be taken into account and the criteria to be applied in order to decide whether the offence in question constitutes an act associated with a political objective. In terms of section 20(4) the Committee should take into account, in this regard, the criteria applied in the repealed indemnity legislation. We are mindful of all these requirements but will only deal with those criteria that are directly relevant to and, in our view, determinant of this application.
In considering the requirements of section 20(3), we take into account that the murder did not occur as part of a political uprising or conflict. On all accounts, as indicated above, there was no political conflict involving the ANC and IFP in the Pongola area at the relevant time. There is, moreover, no evidence that the deceased was in fact regarded as a political enemy of the IFP. It follows from what is set out above that the factual position is that Applicant has failed to establish that the offence was directed at a political opponent. In this regard any subjective belief on the part of Applicant would be irrelevant, given the fact that section 20(3)(d) introduces a factual test. The fact that Applicant may have been misled into believing that this was indeed the position is of no consequence in the context of the enquiry under section 20(3). It has also not been established that the murder was committed as a matter of fact, notwithstanding Applicant’s possible subjective belief, in execution of an order of or on behalf of or with the approval of the IFP. Applicant in fact testified that to his knowledge the IFP had no policy authorising the assassination of political opponents. The then chairperson of the IFP in Pongola, Mr Dlamini, denied that the organisation was involved in the assassination and distance the organisation from the offence in an affidavit placed before us. Applicant was unable to dispute the contents of the affidavit.
In considering the provisions of section 20(3)(f) we take into account that very little, if nay, indication was given in the application concerning the objective which was sought to be achieved through the assassination. Applicant indicated that he had no p[personal knowledge about the deceased or his activities. He referred in his testimony to what was allegedly conveyed to him by the group of conspirators. There were vague references in Applicant’s evidence that the conspirators informed him that the deceased was "a problem for the IFP in Pongola" or that the deceased was a thorn in their flesh. None of these effectively hearsay allegations was substantiated by direct evidence. In fact, Applicant’s version was strenuously disputed by the conspirators. In the circumstances Applicant’s averments carry very little, if any, weight. Even if these allegations were made, we are not satisfied that they had any basis in fact. The fact that Applicant may possibly have been misled into believing the allegations to be true, is irrelevant for the purposes of section 20(3) which deals with the factual situation concerning the offence and the victim. No evidence was placed before us concerning any less drastic measures that were taken to resolve any possible problematic situation concerning the deceased before summarily killing him. As pointed out above, we are not satisfied.
In the circumstances and having regard to the criteria set out in section 20(3) and referred to in section 20(4), we are not satisfied that the murder constitutes an act associated with a political objective, as envisaged in the Act. By the same token, neither the attempted murder nor the unlawful possession of arms and ammunition qualifies for amnesty.
In the result the application is REFUSED.
DATED at CAPE TOWN this 22 day of November 2000.
______DENZIL POTGIETER A J
______C DE JAGER A J
______ADV L GCABASHE AC/2000/213
TRUTH AND RECONCILIATION COMMISSION
AMNESTY COMMITTEE
APPLICATION IN TERMS OF SECTION 20(1) OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, NO 34 OF 1995
______
ZUKO CAMGU APPLICANT
(AM 5932/97)
______
DECISION
______
After considering the relevant documentation and the evidence that was led at the hearing of the amnesty applications of Vuyisile Brian Madasi (AM6077/97); Nkopane Diaho-Monaheng (AM3828/97) an Lungisa Ntintili (AM6539/97) at Cambridge Catholic Centre, East London on 14 April 1998 we are satisfied that:
1. The applicant has complied with the requirements of Act 34 of 1995;
2. The acts, omissions or offences to which the application relates are acts associated with a political objective committed in the course of the conflicts of the past; and
3. That all relevant facts relating to the particular acts, omissions or offences have been disclosed.
Amnesty is therefore GRANTED in respect of the following offences:
1. Conspiracy to attack the Yellowood Hotel and any guests or occupants on 16 March 1993, at Fort Beaufort, but excluding the subsequent attempt and attack which was carried out after the said date;
2 Theft of a Mazda Marathon motor vehicle registration number GCD 1616 belonging to Thandisile Vena on 12 March 1993, at Alice;
3. Unlawful Possession of the following arms and ammunitions in violation of the Arms and Ammunition Act: 76 of 1969:
3.1 1 x R5 rifle with two (2) magazines;
3.2 1 x R4 rifle with two (2) magazines;
3.3 1 x Uzzi SM 6 Pistol with magazines;
3.4 1 x F1 Handgrenade; and
3.5 2 x .38 Revolvers
4. Any other acts, omissions or offences directly related to or connected with the aborted attack at Yellowood Hotel on 16 March 1993; and
5. The Applicant’s conviction on 24 January 1978, in the Fort Beaufort Regional Court, for Sabotage in terms of the Sabotage Act 76 of 1962.
SIGNED AT CAPE TOWN ON THIS THE 22nd DAY OF
NOVEMBER 2000
______
(SIGNED)
______
(SIGNED)
______
(SIGNED) AC/2000/214
TRUTH AND RECONCILIATION COMMISSION
AMNESTY COMMITTEE
APPLICATION FOR AMNESTY IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT NO 34 OF 1995
______
WILLEM JOHANNES MOMBERG 1ST APPLICANT
(AM4159/96)
ERIC GOOSEN 2ND APPLICANT
(AM4158/96)
PHILLIP RUDOLPH CRAUSE 3RD APPLICANT
(AM4125/96)
WILKUS JOHANNES LOOTS 4TH APPLICANT
(AM4149/96)
JOHANNES VELDE VAN DER MERWE 5TH APPLICANT
(AM4157/6)
______
DECISION
______
This decision relates to an incident which became known as the McKenzie Car Bomb incident.
The applicants applied for amnesty in respect of all offences and delicts arising out of and directly connected with the explosion of a bomb in a Hi-Ace motor vehicle in Gaberone, Botswana during April 1987 including murder, attempted murder and damage to property.
All the applicants were members of the South African Police serving in the Security branch. Momberg and Goosen acted as handlers of Mr McKenzie ("McKenzie"), who at the time supplied information to the Security Forces. Although Mr McKenzie initially applied for amnesty in respect of this incident, the Committee was informed by the Evidence Leader that he had withdrawn his application and his application was accordingly not considered.
McKenzie had been in the service of the Security Police since 1983 and managed to infiltrate uMkhonto weSizwe ("MK") in 1985. He became a courier for MK and smuggled weapons and explosives into the Republic of South Africa ("RSA") on their behalf. The security police thereafter controlled these weapons.
Towards the end of March 1987 Brigadier Cronje called a meeting in the vicinity of Broederstroom. The purpose of the meeting was to discuss a possible operation in Botswana with the objective of eliminating MK leaders Victor Hannes Mnizi, Ernest Pule and Lester Dumakude. Mnizi was believed to be one of the chief planners of the Church Street bomb explosion in 1983, Pule was a member of the MK Special Operation group and Lester Dumakude was a member of the same group operating from Lusaka and responsible for the smuggling of weaponry into the RSA.
According to the recollection of Momberg the meeting at Broederstroom was attended by Cronje, Loots, Goosen, Charl Naude, Hechter and himself. A plan was discussed which involved the placing of an explosive device in an existing secret compartment in McKenzie’s Hi-Ace mini bus which was used for the smuggling of weapons. The explosives would be detonated by remote control. This, however, would most probably also have resulted in the killing of McKenzie. Hechter, Goosen and Momberg were against this plan and the meeting adjourned to consider alternatives.
They reconvened the following day. Hechter wasn’t present at the second meeting but Crause attended. They agreed on an alternative plan which they thought would not endanger McKenzie’s life. They knew that on seven out of twenty three occasions when McKenzie visited Botswana weapons were smuggled into the RSA by using the secret compartment in he Hi-Ace. They had information that Dumakude had phoned McKenzie and requested him to urgently come to Botswana. A tape recording of this conversation was available. They knew that the procedure on occasions that weapons were transported to the RSA was that McKenzie would be left in Gaberone and that the targeted MK members would collect the vehicle and go to a secret destination where they loaded the weapons into the secret compartment.
After this they returned the vehicle to McKenzie who would then proceed to the RSA. They decided that they would use a light sensitive detonator to ensure that the explosives would detonate once the compartment was opened. As this would happen when the weapons were being loaded, the victims would in all probability be the targeted MK members or other trusted operatives who would be aware of this compartment and how to open it. As a secondary measure the explosive could also be detonated by a remote device which was to be operated manually by a member of the SADF Special Forces Unit who operated in Botswana. This was to be used if one or more of the targeted victims would be seen in the vicinity of the vehicle or in it.
Goosen and Momberg accompanied McKenzie to the Kopfontein border post where Goosen activated the light sensitive detonator without McKenzie’s knowledge. McKenzie was at no state aware of the bomb. Four or five days later applicants received news from Botswana that a bomb had exploded. McKenzie didn’t return and they only found out what had happened to him years after the event when they saw him again.
McKenzie informed them that he had been stopped by unknown MK members before he reached Gaberone. They instructed him to go to Francistown where he was kidnapped by Dumakude, Pule and other MK members and eventually landed in Quattro Camp in Angola. It became clear that McKenzie’s cover was blown by a person operating from the Security branch who leaked information to the ANC. This unexpected event caused the operator who was in control of the manual remote explosive device to lose track of the Hi-Ace. On hearing of the explosion, Momberg concluded that the operator must have traced the vehicle eventually and caused the explosion or that somebody must have fiddled with the secret compartment. It transpired that the explosion took place in a built up area killing and injuring, according to news bulletins, several people contrary to the initial planning to kill or injure Mnisi, Pule or Dumakude or operatives loading weapons into the vehicle.
Goosen testified that he was told by members of the Special Unit that the person who had to control the manual detonator device searched for days to trace the Hi-Ace. Approximately five days later he saw the vehicle parked in a built up area and then detonated the bomb. Three innocent civilians were injured and another three were killed.
The roles of the other applicants can be summarised as follows:
Loots was present at the meeting at Broederstroom because he was the area commander, Crause had to make sure that the vehicle would cross the border at Kopfontein without the bomb being detected. Van der Merwe authorised the operation after he was informed of the plan the reasons for it.
The Special Forces Unit of the SADF would have been in control of the operation as far as the cross-border aspects of it were concerned. That would have resorted under Charl Naude and the applicants were not aware who the operative or operatives tasked in the operation had been. No member of the SADF has applied for amnesty and it was stated that this is because of legal advice furnished to them about cross border operations.
The applicants confirmed the facts set out above insofar as it feels within their personal knowledge. Hechter did not attend the follow-up meeting at Broederstroom, was not informed of the second plan which was adopted and in no way took part in the operation.
It is common cause that the operation was associated with a political objective, that it related to the conflicts of the past and that it was directed at political opponents. It was also conceded that the fact that the explosives were used made it foreseeable that people other than the three targeted MK leaders or other MK soldiers assisting in loading weapons into the vehicle could be killed or injured including civilians in the vicinity of the vehicle. It was also foreseeable that property could be damaged. These are risk inherent in the using of bombs or land mines in the war situation that existed.
In the result all the applicants are GRANTED amnesty in respect of any offences and/or delicts flowing from and directly connected with the explosion of a car bomb in a Hi-Ace motor vehicle in Gaberone, Botswana during April 1987 in which explosion people were killed and injured and property was damaged.
Signed at Cape Town on this the 23rd day of November 2000
______
JUDGE S KHAMPEPE
______
ACTING JUDGE C DE JAGER
______
MR IAN LAX AC/2000/215
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
______
EUGENE ALEXANDER DE KOCK 1ST APPLICANT
(AM0066/96)
ROBERT PETER McINTYRE 2ND APPLICANT
(AM3584/96)
DOUW GERBRANDT WILLEMSE 3RD APPLICANT
(AM3721/96)
DAWID JACOBUS BRITZ 4TH APPLICANT
(AM3745/96)
WILLEM ALBERTUS NORTJE 5TH APPLICANT
(AM3764/96)
IZAK DANIEL BOSCH 6TH APPLICANT
(AM3765/96)
JACOBUS KOK 7TH APPLICANT
(AM3811/96)
JACOB FRANCOIS KOK 8TH APPLICANT
(AM3812/96)
PAUL JACOBUS HATTINGH 9TH APPLICANT
(AM3916/96)
JOHAN HENDRIK TAIT 10TH APPLICANT
(AM3922/96)
TH LARRY JOHN HANTON 11 APPLICANT
(AM4076/97)
HENDRIK CHRISTOFFEL DU PLESSIS 12TH APPLICANT
(AM4129/97)
NICOLAAS JOHANNES VERMEULEN 13TH APPLICANT
(AM4358/97)
MARTHINUS DAWID RAS JNR 14TH APPLICANT
(AM5183/97)
WYBRAND ANDREAS L DU TOIT 15TH APPLICANT
(AM5184/97)
WILHELM RIAAN BELLINGHAN 16TH APPLICANT
(AM5283/97)
HENDRIK VAN NIEKERK KOTZE 17TH APPLICANT
(AM5451/97)
GEORGE FRANCOIS HAMMOND 18TH APPLICANT
(AM5452/97)
LEON WILLIAM JOHN FLORES 19TH APPLICANT
(AM4361/96)
______
DECISION
______
The applicants apply for amnesty for various offences and delicts flowing from and directly associated with an arson attack by members of the South African Police on 12 October 1988 on Khanya House, the Pretoria headquarters of the Southern African Catholic Bishops Conference (SACBC). As a result of the attack the building was severely damaged and printing facilities destroyed. With the assistance of the fire brigade, the persons who were sleeping in the building were fortunate to escape without injury but, having been trapped in the fire for some time, they were all severely traumatised.
All the applicants (who will be referred to in the order listed above) with the exception of the third applicant, Willemse, testified before the Committee. During the course of the hearing, the legal representative appearing on behalf of Willemse submitted a psychiatric report to the Committee indicating that this applicant was suffering from a post traumatic stress disorder. His condition, according to the psychiatrist, is so severe that it would seriously impact on his mental condition and create a serious threat to his own life and the lives of others should he be required to testify. After having heard the evidence of his co-applicants the Committee was satisfied that their evidence would be sufficient for purposes of coming to a decision with regard to his application. Consequently the Committee did not hear evidence from Willemse.
The hearing was attended by a number of the victims who were trapped in the fire on the night of the attack. Two of the victims, Ms Rosemary Cook and Mr Rodrego Nunes testified at the hearing. Brother Gerald Pieterse, known as Brother Jude, who was the Secretary-General of the Bishops Conference at the time of the incident, also testified.
The applications were initially opposed on the basis that the applicants did not commit the act(s) with a political objective as defined by the Promotion of National Unity and Reconciliation Act, 34 of 1995, hereinafter referred to as the Act, and that they had not made a full disclosure of all relevant facts. The last-mentioned objection related to the question as to whether the applicants knew that there were people present in the building that night and the question as to which applicant or applicants had planted arms in one of the offices. At a later stage, after all the evidence had been led, the opposition was withdrawn and the victims indicated that they accepted the evidence of the applicants. This came about as a result of the fact that the victims conceded that the applicants may not have been in a position to give answers to all their questions. It became clear that some of their colleagues who had participated in the attack and did not apply for amnesty, may well have been responsible for certain actions that the applicants were unable to explain.
Although on the face of it, there were minor discrepancies in the versions of the applicants as to what happened that night, the Committee did not regard these as material. One exception is the evidence of the applicant Flores to whom we shall revert later, the versions of the other applicant do correspond when viewed broadly. In summary their evidence was as follows.
The Security Police had information resulting in a bona fide belief that the Bishops Conference supported the African National Congress in its struggle for liberation, that Khanya House was being used for anti-apartheid activities and more particularly that the printing press at Khanya House was being used for the printing of propaganda material.
Brigadier Robert McIntyre, the head of the Stratcom section of Security Branch in Pretoria, although not personally involved in the planning or carrying out of the attack, suggested that Khanya House be damaged by fire and he gave the order. The aim was to destroy records, disrupt the meetings in the building and thus cause a scaling down of the perceived anti-apartheid activities of the SACBC.
The first applicant, De Kock, was approached by the eighteenth applicant, one Captain Kotze of the explosives division in Pretoria, to assist him in the arson attack. According to De Kock this was approved by his immediate superior Brigadier Schoon. Schoon was not an applicant in this application. De Kock, in turn, through the usual line of command, involved other members of his unit at Vlakplaas in the operation, the third, fourth, fifth, sixth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth and seventeenth applicants. The role of each of these operatives varied in accordance with what was assigned to each in a prior briefing session.
Members of the explosives unit one Captain Kotze, the 18th applicant, assisted by the 19th applicant, Hammond, also participated. Their role was primarily to ensure the successful igniting of the fire. Other technical support, such as picking of the locks was given by the two brothers, Koch, the 7th and 8th applicants, who were under the command of Brigadier W A L du Toit. Du Toit himself was not an active participant but he knew and approved of the participation of his two staff members.
Observations of Khanya House during a reconnaissance mission, prior to the night of the incident, proved that no people resided in the building at night. However, on the night of the incident there were indeed five persons sleeping on the second floor following a meeting that day. De Kock testified that he was shocked when he realised this. All the applicants, in fact, testified that up till that stage that the fuses were ignited and the fire had already started to spread they were unaware of the presence of people in the building. This was disputed by the victims who maintained that petrol had been poured onto the carpet of the passage on the floor where they were sleeping. There was also evidence presented by one of the victims that his door has been opened by someone. During the testimony of Brother Jude, and in accordance with a faxed communication from the Archbishop he had received, certain concessions were made and the opposition to the applications withdrawn. The Committee is of the view that the full text of this communication warrants to be quoted in its entirety.
"Besides the near tragic loss of the seven people, the Catholic Church was heavily discredited in the minds of many ordinary South Africans by the well publicised accusation that the Bishops Conference had been harbouring weapons at Khanya House and had been responsible for the printing of a whole range of subversive materials. The clear admissions that have emerged during the course of the past few days have laid these allegations to rest. We had the earlier testimony of Mr De Kock that he gave the orders for the planning of those explosives. We had the clear testimony yesterday too of Mr Kotze that by no means what was there could be described as a printing press. However, the Southern African Bishops Conference still finds itself not fully informed of all the circumstances surrounding the firebombing of its headquarters, Khanya House. Specifically:
(i) The name of the person/persons responsible for dousing the second floor of the building with petrol;
(ii) Whether the fact that the arsonists later discovered that there were people in residence is responsible for the lacuna in the information admitted;
(iii) Who was actually responsible for planting the explosives? Given the need to know principle followed by the arsonists, the evidence so far heard may indeed be impossible morally or physically to know the names of the others involved, senior or junior to those applying for amnesty.
In summary, while unanswered questions remain, there is the possibility that others who have not applied for amnesty could have been involved. Therefore, given the perceived genuine efforts on the part of some of those who participated to set the record straight, particularly with regard to the two points mentioned above and in order to foster the process of reconciliation in our country, the Southern African Bishops Conference is willing not to oppose the applications for amnesty of the applicants."
Reference has already been made to the difficulty that arose in connection with the arms and explosives that were planted in one of the offices to create the impression that the Church was supplying arms to the liberation movements. The first applicant, De Kock admitted that this was his idea but neither he nor any of his co-applicants could assist in telling the Committee who had actually planted the arms. Here too, it was correctly conceded that it could have been on of the operatives who had not applied for amnesty.
It is quite understandable that after such a long time after the incident there would be some memory lapses in regard to finer detail.
With the exception of the evidence given by Flores, the Committee considered the evidence of all the other applicants collectively. Having regard to all the evidence, the Committee is satisfied that these applicants acted with a political objective as required by the Act and that they had made a full disclosure of all relevant facts which fell within their knowledge and which they could remember. They have also complied with all the formal requirements of the Act.
The application of Flores caused the Committee some difficulty. Although he fell into more-or-less the same age group as the majority of his co-applicants, he was the lowest ranking member and also appeared to be of a lower level of education. He testified that he had only passed Std 8 at school. In addition, his participation in the operation was very peripheral and he did not have any part in the planning thereof. After thorough consideration of his evidence the Committee came to the conclusion that the applicant was genuinely confused when he filled in his application form and even at the time that he gave his evidence. The Committee is satisfied that he had disclosed as much as he possibly could, given his abilities and circumstances.
Accordingly amnesty is GRANTED to all the applicants listed above for any offences or delicts directly associated with or flowing from the arson attacks on Khanya Hose in Pretoria on 12 October 1988.
All persons who were present in the building at the time of the incident are victims in the opinion of the Committee and they are referred to the Committee on Reparation and Rehabilitation for consideration in terms of Section 22 of the Act.
Signed on the 22nd day of November 2000
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JUDGE N J MOTATA
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ADV F BOSMAN
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MR N SANDI AC/2000/216
TRUTH AND RECONCILIATION COMMISSION
AMNESTY COMMITTEE
IN TERMS OF SECTION 18 OF THE PROMOTION OF THE NATIONAL UNITY AND RECONCILIATION ACT, 34 OF 1995
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VOICE MORRIS SAMBO APPLICANT
(AM 1192/96)
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DECISION
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This application flows from the killing of W/O D W Van der Spuy a member of the motor vehicle crime investigation section of the South African Police in or near Komatipoort Mpumalanga on 29 October 1992.
The hearing of the application commenced on 7 December 1999. It was duly completed and full argument was heard. Sometime hereafter, the applicant, a member of the ANC and former MK commander, applied for the reopening of the hearing on the basis that he did not have a full understanding of the amnesty process at the time that the matter was heard. He had for this purpose obtained the services of another legal representative. The application for a reopening of the hearing was granted on 4 February 2000, whereafter the applicant indicated that he was also applying for amnesty for the attempted murder of one O’Farrell, then a constable, who had accompanied Van der Spuy on the day of the incident. The applicant then proceeded to present supplementary evidence.
Originally the applicant had only applied for amnesty for the murder of Van der Spuy. Obstructing the course of justice, illegal possession of a firearm and illegal possession of ammunition. There was no mentioned of the attempted murder. In this regard it is significant that he was never charged with attempted murder but only the other offences in respect of which he applied for amnesty and of which he was convicted and sentenced to forty years imprisonment. This leads to an inference that the attempted murder is something knew introduced by the applicant to favour his amnesty application.
Both the applicant and O’Farrell testified at the hearing. His application was opposed by O’Farrell who claimed to have been severely assaulted by bystanders after the shooting of his colleague. O’Farrell based his opposition on the lack of a political objective on the part of the applicant. According to his evidence he and the deceased, Van der Spuy, had gone to the applicant’s residence in broad daylight to investigate possible motor vehicle theft. They informed the applicant hat they were policemen, whereupon the applicant grabbed the deceased’s firearm and shot him. The applicant’s version lacked consistency in respect of various aspects relating to the incident and the reason for killing the deceased. In the end he averred that there was a general instruction from the MK leadership that policemen should be killed. This evidence was offered at a very late stage of the reopened hearing and only after extensive questioning by members of the panel. He also conceded that he had not, prior to the incident, killed or known of any killing of a policeman by any of those under his command as a result of the alleged instruction.
The panel, in assessing the political objective of the applicant, viewed the incident against the background of the evidence of the applicant that he had continually been harassed by members of the security police and given the history of the applicant’s political background, had little difficulty in accepting his evidence, even at that late stage of the political struggle. However, many other aspect of the applicant’s evidence was contradictory and extremely unsatisfactory. In his written application, the applicant stated that he thought the two plain-clothes policemen who come to his home in a tow truck were thieves who wanted to steal from him. When questioned at the hearing he attributed this to a misunderstanding between him and the person who assisted him in filling out the application form. He also explained that he did not mean thieves but criminals because he regarded all policemen as criminals. It is significant that at the criminal trial he also stated that he thought they were there to steal. Although he testified at the amnesty hearing that he had lied at the criminal trial, the evidence at the trail is confirmed by the statement in his application form and leads to an inference that this probably the true state of affairs. Furthermore, the applicant conceded, after his rather belated claim that there was a general instruction to kill policemen, that he knew of no policeman who had been killed either by him or anybody under his command.
When questioned about the group of people who were allegedly present at the time of the killing, the applicant vehemently denied their presence and called it a "blue lie". Only later after much cross-examination he conceded their presence and rather unconvincingly explained that he did not want to implicate them in the incident. This reflected very negatively on the applicant’s credibility in general.
This in the light of the many inconsistencies, contradictions and the differing versions of the applicant as set out above, the committee is of the view that the applicant has failed to make full disclosure of all relevant facts and accordingly the application is REFUSED.
Despite our refusal of this application, the committee is of the view that in the light of the continued and considerable harassment that the applicant was subjected to and particularly in the light of the extremely harsh sentence, that the applicant received this is an appropriate case for executive intervention.
Accordingly, we recommend that the ministries of Justice and Correctional Services investigate the matter with a view to affording the applicant an appropriate reduction in sentence.
SIGNED AT CAPE TOWN ON THIS THE 27th DAY OF NOVEMBER 2000
______KHAMPEPE S A J
______ADV F J BOSMAN
______MR I LAX AC/2000/217
TRUTH AND RECONCILIATION COMMISSION
AMNESTY COMMISSION
APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT NO 34 OF 1995
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CLARENCE MBOGENI MAJOLA APPLICANT
(AM 7702/97)
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DECISION
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This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No 34 of 1995 ("the Act").The applicant has applied for amnesty in respect of his convictions for the murders of Oswald Mthethuzima Mbuyisa Shabane and Thenjiwe Mavis Bhengu, who lived together as husband and wife, on 7 April 1991, at Block 3 Dalmeny Farm, in the District of Inanda.
The applicant testified that he was at all material times a member and supporter of the African National Congress ("ANC"). He said that he joined the ANC in 1990. He was the recruiting officer for the area and chairperson of the Block 3 committee.
The applicant, in his evidence, dealt with the political situation in the area. IFP supporters who were under the leadership of one Ngubo had moved out of the area but continued to threaten and attack ANC members. This made it difficult for him to continue recruiting new members. He also said Ngubo had often visited the home of the deceased and he believed them to be friends.
The applicant testified that he had called a meeting of his area on 7 April 1991 to discuss and number of development issues. At one stage of the meeting, the deceased became the focus of attention because they had suggested enlisting the assistance of an inyanga from Eshowe and opposed the idea of calling on the SADF to protect the developers, It also appeared as if they had contested some of the applicant’s positions, Majola further testified that these suggestions caused a dispute and raised suspicions that the deceased were IFP supporters.
Shabane was questioned about a firearm he was believed to have obtained from Ngubo. A group of people were then dispatched to the deceased’s home to search for this firearm. They returned with a home-made firearm and a bag of herbs believed to be muti. Shabane now admitted to having obtained this firearm from Ngubo. Majola further testified that as a result finding these items it was decided to question the deceased further in order to confirm whether they were IFP supporters or not.
Majola thus felt the deceased posed a threat to the area and that their death would cause the attacks to cease. He also felt that the deceased had come to the meeting to destabilise things and didn’t want development in the area.
Tension grew at the meeting and it was decided to assault Shabane and subsequently Bhengu with a sjambok. Thereafter the applicant admitted to telling the people present to kill the two deceased. Shabane was then shot, apparently by one Mbuyiswelwa; Bhengu fled but was chased by part of the crowd and stabbed; a tyre was subsequently set alight on her body. We are aware of the fact that there was no cogent evidence that either the deceased were in fact members of the IFP of "inyangas".
It is, however, clear that the actions of the applicant took place within the context of the ongoing tension in the area although the political violence between the supporters of the ANC and those of the IFP had diminished at the time. His actions were aimed at stopping the deceased because they were perceived to be supporters of the IFP and thus against the ANC supporting section of the community in that area.
Although there were some aspects of the applicant’s evidence that were contradictory, he was the only witness to testify before us. The few matters where his evidence was different to that led at his trail and the versions in his statements are not of such a nature as to warrant a finding that the applicant has not made full disclosure of all relevant facts. We are also satisfied that he did not act out of ill will, spite or malice or for personal gain.
We are horrified that the killings of Bhengu may have been caused by so-called "necklacing". We are, however, satisfied that the applicant did not play an active part in nor was he present at her killing. If we had reason to believe that he had planned, participated in or approved of such a brutal killing we may well have come to the conclusion that in terms of Section 20(3)(f) the proportionality of the act was not such as to entitle the applicant to amnesty. That, however, is not the position here.
Having considered the matter the Committee is of the view that the applicant has satisfied the requirements of the Act. He is hereby GRANTED amnesty for the murders of Oswald Mthethunzima Shabane and Thenjiwe Mavis Bhengu on 7 April 1991 at Block 3, Dalmeny Farm in the District of Inanda.
The Committee is of the opinion that the relatives or dependants of the late Oswald Mthethunzima Shabane and Thenjiwe Mavis Bhengu are victims and they are accordingly referred to the Reparation and Rehabilitation Committee for consideration in terms of Section 22(1) of the Act.
SIGNED AT CAPE TOWN ON THIS 28th DAY OF NOVEMBER 2000
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JUDGE A M B WILSON
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ADV S S SIGODI
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MR I LAX