DECISION
This is an application in terms of section 18 of the Truth and Reconciliation Act, No.35 OF 1995 ("The Act").
The applications are in respect of an incident which took place on 10 July 1986 on the Breslau road in the district of Alldays, next to the country's border with Botswana. The applicants were, at all material times hereto, members of the Security Branch of the South African Police. In that incident, six uMkhonto weSizwe (MK) cadres were killed in a combined operation of security forces which included members of the Security Branch, Far North, and the South African Defence Force. The relevant facts were briefly as follows:
The Security Police, through an informer, came to know about these cadres while they were still in Botswana. Applicant Sehlwana infiltrated them and arranged with them that he would transport them from Botswana into the Republic. The Security Branch supplied him with the necessary vehicle, a minibus. It was arranged that on the day in question, he would, shortly after entering the country, bring the minibus to a sudden halt and jump out, leaving the cadres alone. A teargas canister would then be thrown into the minibus to subdue the occupants with teargas, whereafter they would be arrested.
The day before the incident, Sehlwana's escape from the minibus was rehearsed to make sure things would go as planned. He was shown the direction and route he would follow once he jumped out of the vehicle. There were altogether about 38 members of the Security Forces taking part in the operation, posted at different points. The purpose of the operation was to capture the cadres alive, but not at the risk of danger to the life of any member of the Security Forces. In such a case, we were told, maximum force had to be used. Once the minibus came to a halt, a police casspir would emerge put of the bush and stop in front of the minibus.
On the morning of the 10th Sehlwana arrived at the appointed place with the minibus, carrying the cadres. The cadres were armed. They had handgrenades, and their AK-47 assault rifles. Except for one who had his rifle on his lap, the rifles were in the containers. Sehlwana stopped the vehicle as arranged, and jumped out. The vehicle was teargassed and some shooting followed. After everything had subsided, it was discovered that all the cadres but one, were dead. The survivor was badly injured. According to Sehlwana, the survivor was later shot dead by one of the applicants, Fuchs. The latter denies that and he is supported by other applicants.
It may be convenient to deal with the application of Sehlwana first, who falls under a different category. The most outstanding feature of his evidence is that he concluded, during the rehearsal referred to above, that the cadres were not going to be arrested, but ambushed and killed. He therefore, on his own version, knowingly led the deceased to their death. This makes him guilty of the murder of the deceased.
Another aspect on which he disagrees with the rest of the applicants is on what happened with the cadre who had survived. Whether he is believed or not on this aspect, it is not material to his own application.
No argument was presented by anybody that he did not meet the requirements for amnesty. At the time, like the rest of the applicants, he was a member of the Security Branch and he acted in his capacity as such. It must be accepted, on his version, that the confrontation with the cadres was in the course of the conflict of the past, and that it was a political skirmish. In our view, Sehlwana is ENTITLED TO AMNESTY.
The second category of applicants are those who were not at the scene, but who had also taken part in the planning of the operation. They are: Col WJ van der Merwe, Brig NS Coetzee, and Capt. JP van den Berg. We accept that officially the plan was to arrest the deceased. That would explain why so many members of the Security Forces were deployed. This group of applicants were not even present at the scene. If we were to find that one or more applicants subsequently abandoned the idea of arresting the deceased and instead decided to kill them the position of these three applicants would not be affected. Counsel for applicants, Mr Visser, has submitted that an application need not show that what he has committed constitutes an offence or a delict before getting amnesty.
But surely no question of amnesty can arise in respect of somebody who had merely planned a lawful arrest (we have dealt with this point) and, moreover, was not even at the scene. Unlike Sehlwana's case, theirs is that the deceased were not be killed.
The third category of applicants are those who were at the scene, but did not fire any shots. In our view they are also not candidates for any amnesty. The applicants falling in this category are: PJCJ Fourie; J Venter; JH van Dyk; Jan Strydom and PA Dreyer. They were there, deployed for a perfectly legitimate purpose of arresting people who were to enter the country illegally and with weapons of war. What can be more legitimate than being deployed to arrest such people? Apart from being deployed there, they did literally nothing in relation to the deaths in question.
It is appropriate at this stage, before moving on to the fourth category of applicants, to refer to certain points raised by Mr Visser who appeared on behalf of all the applicants with the exception of Mr Sehlwana. As already stated above, it is his submission that amnesty should be granted even where an applicant has not committed any offence or delict. He argued that, in providing that "amnesty should be granted in respect of acts, omissions and offences" the postamble to the Interim Constitution, Act 200 of 1993, contemplated amnesty to also those acts or omissions which constitute neither an offence nor a delict. Therefore, Mr Visser submits, to the extent that section 20(2) of the Act provides that amnesty may only be granted in respect of those acts and omissions constituting either an offence or a delict, it contradicts the postamble. Section 20(2) must of course be read together with section 20(1). Section 20(1) stipulates as one of the requirements for amnesty that the "Act, omission or offence" in respect of which amnesty is sought must be "an act associated with a political objective". Section 20(2), to which the criticism is essentially directed, then steps in to define an "act associated with a political objective".
It says "an act associated with a political objective means any act or omission which constitutes and offence or delict...". It is clear from this aforegoing quotation that not any act or omission will attract amnesty, but only an act or submission which constitutes either an offence or delict. Section 20(2), is therefore in direct conflict with the postamble of the Interim Constitution inasmuch as the section narrows, through the above definition of an act associated with political objective, the category of acts or omissions in respect of which amnesty may be granted.
It is therefore argued that in line with the postamble of the Interim Constitution, the Act should have allowed amnesty irrespective of whether or not an act or omission constituted an offence or delict. Counsel says we should follow the postamble and, upon other requirements being met, grant amnesty even if an applicant, on the facts before us, has committed neither and an offence nor a delict.
He motivates his argument further by saying that such an approach would serve the cause of reconciliation, which is the underlying and primary objective of the Act. How such an objective stands to be achieved by granting or refusing amnesty in respect of something which if neither a crime nor a delict is not clear. After all, if an act omission is neither of the two, it is surely legitimate! But much as counsel's may weigh with us, it is not for us to inquire into the validity of the provisions of the Act. We apply the laws as we find it, particularly where it is as clear and unambiguous as section 20 (2) is. Besides, while there may be some merit in counsel's submission, it may on the other hand be argued that the Interim Constitution merely provided the frame work, and left the details to the Act, which would be easy to amend.
It is also difficult to imagine that the Interim Constitution could have willed that the amnesty process be flooded with applications in respect of acts or omissions which are in law inconsequential. Could it have been envisaged that we should consider an application for amnesty by a person who feels bad that he had refused to donate part of his own huge collection of food to his indigent political opponent who had starved to death as a result, even though such a omission did not amount to a crime or delict on the part of the applicant? Should we grant such a person amnesty simply because that would effect some reconciliation between him and the deceased opponent's children?
Another argument raised was that even if, in the Committee's view, the act or omission does not constitute an offence or a delict, amnesty should nonetheless still be granted lest, in the event of an applicant being subsequently prosecuted or sued, the very same act is found to be an offence or delict, as the case may be, by the court hearing the matter. This argument cannot stand. The act or omission must, in the opinion of the very committee hearing the application for amnesty, constitute "an offence or delict". That this is so is clear not only from the sections dealing with the process of amnesty, but also the fact that a prescribed criteria must be taken into account by the committee itself, in determining whether or not a particular act or omission qualifies. The whole process and inquiry into whether or not all requirements have been met, starts and ends with the Committee. It is the Committee itself which must determine and satisfy itself that all the requirements (including the fact that the act or omission "constitutes an offence or delict") are met at the time when the Committee takes a decision on the application.
An applicant must satisfy us that, amongst others, the act "constitutes or delict", and he must do so before he can get any amnesty. That the act in question must "constitute an offence or delict", is clearly an essential element in the definition of "an act associated with a political objective".
In passing it may be mentioned that while amnesty has consistently been denied to applicants who denied both criminal and civil liability, amnesty was on one or two occasions granted nonetheless. This occurred where, despite denial of criminal liability, the applicants in question nevertheless admitted before us facts which, in our judgement, showed that such applicants did in fact commit either "an offence or delict". This, however, is not the case with the applicants now before us, in the second and third categories.
Another problem with counsel's argument is that a situation may develop where an applicant puts in one foot to, as it were, test the waters by withholding incriminating facts and presenting innocuous information just in case he would not get amnesty.
The fourth category of applicants are those who were in the casspir. They are the ones who fired into the minibus. They are: Col AJG Erwee; Capt PPFF Fuchs; Superintendent JH Kruger; Senior Superintendent LM Pretorius and Senior Superintendent FCS Swarts. Col Erwee was their commander. In fact he was in charge of the operation that morning. That distinguishes him at once from the others, in that the latter were taking orders from him. While we have found that as far as the seniors were concerned the primary purpose was to capture the cadres, as opposed to killing them, the same cannot be said of Col Erwee. It could be that initially he was also of the intention to effect the arrest. What is clear though is that at the time he opened fire on the minibus, his intention was to annihilate the deceased. It is immaterial as to the day or hour of his change of mind. The pattern of events, as well as the surrounding circumstances, indicate quite clearly that his aim was to annihilate the cadres upon sight. Mention was made of a shot being heard immediately after the minibus had stopped. Erwee went so far as to say that after such a shot, there followed a volley of automatic gunfire. He says he thought all these shots came from the minibus. However, this evidence is contradicted by the evidence of Sehlwana, who had just come out of the minibus. Sehlwana states that he did not hear any shots that could have been coming from the minibus.
Even though Col Erwee was in the safety of a casspir, he says he felt threatened and was also concerned about the safety of his colleagues outside the casspir. That, according to him, was why he decided to open fire. He however knew that the instructions were to arrest the people and was quite aware that the minibus was engulfed in teargas. In fact, there was so much teargas that one witness said he could only see the frame of the minibus. The gas was so much that it affected people in the casspir and in the helicopter. It must therefore have been obvious even to Col Erwee that the people were overwhelmed by the teargas; yet he pumped in no less than a whole magazine and a half of an R1 rifle resulting in a total of about 30 rounds of ammunition. Even though he found time to change the magazine, he did not pause to see if there was any reaction forthcoming from the minibus. He saw, without interfering, as to how his other three colleagues in the casspir also pumped bullets into the minibus.
At the end, about 85 rounds of ammunition were pumped into the minibus at his instance. We find it was at his instance, because, on his own version, he initiated the shooting out of the casspir. He made absolutely no effort to summon into action other members of the joint security forces to help monitor any possible response or resistance from the minibus which, as we have said, was obviously engulfed in teargas. From the way Col Erwee handled the situation, it seems he became completely oblivious of the presence of more than twenty policemen who were posted around the area; they might as well not have been there at all. All these factors indicate that he was not prompted by the desire in self defence as he alleges, but by the desire to wipe out the insurgents.
To the extent that he has told us that he acted in self-defence, and that his primary objective at all material times was to arrest the deceased, we do not believe him. His conduct was not consistent with an arrest as a primary objective, but rather with the intent simply to wipe them out. The implication of this finding is that he has failed to make a full disclosure of all relevant facts; in particular the fact that his plan was to simply annihilate the deceased upon sight, for whatever they be good or bad. See in this regard section 20(1) of the Act which requires an applicant to make a "full disclosure of all relevant facts" before amnesty is granted.
With regard to the other applicants who were with him in the casspir, it is reasonable and fair to say they acted on his orders. True, he did not in so many words order them to shoot, but when he opened such ferocious fire they must have construed that as a signal to do the same. One must bear in mind that Col Erwee was in command that morning. In fact he was the one who ordered the firing to stop. Their evidence, being an echo of that of Col Erwee, that the shooting was prompted solely by the need to act in self defence (including the defence of the rest of their colleagues), is likewise rejected.
We do find however that, on the version of Col Erwee, they acted in terms of his orders in the manner explained above, on their own evidence as well, they followed Col Erwee in shooting at the deceased.
Finally, there is little doubt that the deceased were members of MK and that they wanted to come into the country with weapons of war, in the course of a political struggle.
Re: The making of false affidavits submitted to the inquest proceedings.
Following the incident, the following applicants made affidavits in which they deliberately lied: AJG Erwee; FCS Swarts; PA Dreyer and JH van Dyk. They knew that the affidavits were required for inquest proceedings.
For all practical purposes, the false information was aimed at preventing the truth from coming out. There is no doubt that had the truth come out, the then government would have been politically embarrassed, thus suffering a huge political setback. We therefore find that whatever offence was committed in submitting such false or incomplete information, it was an act associated with a political objective and the applicants, having satisfied other requirements, are
ENTITLED TO AMNESTY FOR MAKING SUCH AFFIDAVITS: .
Conclusion
1. Re: The killing of members of MK.
1.1 Amnesty is hereby
GRANTED: to the following five applicants
(i) Maropeng Matthews Sehlwana.
(ii) Paul Phillipus Francois Fuchs.
(iii) Joachim Heinrich Kruger.
(iv) Laurens Martin Pretorius and
(v) Frederick Christiaan Stephanus Swarts.
in respect of the murders of certain six members of uMkhonto weSizwe, namely Lenpa Montgomery Moloi; Tlhabane Rantho Mphai Mogashoa; Walter Titus Alset and three others whose identities have never been known, killed on the road between Breslau and Alldays, on or about 10 July 1986.
1.2 Amnesty in respect of the above murders is
REFUSED: to the following applicants
(i) Andries Johannes Gerhardus Erwee.
(ii) Nicolaas Stephanus Coetzee.
(iii) Jacobus Petrus van der Berg.
(iv) Willem Johannes Hendrik van Dyk.
(v) Johannes Andries Nel Strydom.
(vi) Pieter Andries Dreyer.
(vii) Willem Johannes van der Merwe.
(viii) Josef Venter, and
(ix) Phillip Theunis CJ Fourie.
2. Re: The making of false affidavits in connection with the murders of certain six members of uMkhonto weSizwe, namely Lenepa Montgomery Moloi; Tlhabane Rantho Mphai Mogashoa; Walter Titus Alset and three other unknown, killed on the road between Breslau and Alldays, on or about 10 July 1986
Amnesty is
GRANTED: to the following applicants for perjury and/or defeating the ends of justice or the attempt thereof: Andries Gerhardus Erwee; Frederick Christiaan Stephanus Swarts; Pieter Andries Dreyer and Johannes Hendrik van Dyk.
It is our opinion that the relevant relatives of the deceased are victims as defined by the Act and hereby recommend that the Committee on Reparation and Rehabilitation considers their status accordingly with a view of making a finding in this regard.
SIGNED ON THE 15TH OF APRIL 1999.
