DECISION
These are applications for amnesty in terms of the provision of Section 18 of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 ("the Act"). The applications relate to the abduction and detention of Mr Herbert Mbali during or about November 1972 by agents of the security branch of the then South African Police. At all material times, both Applicants had applied for amnesty in respect of a number of incidents, all of which, bar the present incident, had already been finalised. Their personal circumstances and activities as members of the security branch had been fully canvassed in the matters already finalised and no useful purpose would be served by repeating the same in this decision. The respective roles played by the Applicants in the incident will now be dealt with.
At all material times, the Applicant, Genis, held the rank of Lieutenant-Colonel and was the divisional commander of the security branch in the Orange Free State, stationed at Bloemfontein. It was brought to Applicant's attention that a key African National Congress ("ANC") operative, one Alexander Mumbaris and his wife were arrested by the Police at the Koopfontein Hek border post between South Africa and Botswana. Subsequent investigations by the Police revealed that Mumbaris was responsible for a large scale infiltration of ANC operatives into South Africa with the objective of pursuing the armed struggle being conducted by the ANC against the then South African Government. Most of the infiltrators had been arrested except for a small group, including Mr Mbali who had managed to escape to Lesotho where he was given political asylum. Further armed action was being planned by the ANC operatives in Lesotho. Mr Mbali was a highly trained ANC operative who had received military training in the East bloc countries and who enjoyed a prominent status within uMkhonto weSizwe ("MK"), the military wing of the ANC. In the circumstances, the security branch leadership were anxious to apprehend Mr Mbali. To this end, the national commander of the security branch, Major General Piet Kruger, ordered Genis to attempt to lure Mr Mbali to South Africa in order for him to be arrested by the Police. Applicant instructed one of his subordinates to execute the order. The latter recruited an informer, who was a member of the Lesotho Police, to lure Mr Mbali in Lesotho and brought him to South Africa. Mr Mbali was then handed over to one of Genis' subordinates. Genis reported this state of affairs to Major General Kurger, who ordered Genis to convey Mr Mbali to Parys where he would be received by representatives of the security branch head office. The objective was to interrogate and eventually prosecute Mr Mbali. Genis transported Mr Mbali to Parys where he was handed over to a group of security branch members from the head office, including the Applicant, Schoon.
Schoon was a junior major in the security branch at the time and was ordered by Major General Kruger to take Mr Mbali into custody at Parys. Schoon then transported Mr Mbali to Pretoria where he again reported to Major General Kruger who ordered Schoon to convey Mr Mbali to the Platjan border post and await further instructions there. Schoon was eventually ordered to return Mr Mbali to Pretoria whereafter he was returned to Lesotho. Mr Mbali spent approximately 3 days in the custody of the security branch before he returned to Lesotho. There are indications that Mr Mbali had been assaulted while he was in the custody of the security branch, but there is no suggestion that any of the Applicants were involved in the assaults. Mr Mbali's return was prompted by events in Lesotho. It transpired that a colleague of the informer who had abducted Mr Mbali in Lesotho became suspicious and reported the incident to the Lesotho Police. The Lesotho government subsequently registered a formal protest in regard to the incident with the South African Government who ordered that Mr Mbali should be returned to Lesotho.
Having considered the matter, we are satisfied that the incident is directly associated with the political struggle being waged at the time involving the ANC and the then South African government. We are accordingly satisfied that the incident constitutes an act associated with a political objective as envisaged in the Act and that the applications comply with all of the other requirements of the Act. In the circumstances, amnesty is hereby GRANTED to the Applicants in respect of all offences directly resulting from the abduction and detention of Mr Herbert Mbali, as detailed above, during or about November 1972.
In our opinion, Mr Herbert Mbali is a victim in respect of the incident for which amnesty is hereby granted and he is accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED AT CAPE TOWN THIS DAY OF 2001.
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