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 an incident which occurred in the early hours of the morning on 20 June 1986 at Chesterville in KwaZulu Natal when a group of security policemen shot and killed four members of the youth in the township and shot and seriously injured another member of the youth. Neither of the Applicants was directly involved in the shooting incident but claimed to have played a peripheral role during the course of the police operation in question. The only legal proceedings relating to the incident appears to have been an informal inquest where all of the perpetrators were exonerated. None of the Applicants nor any other member of the police was criminally charge in connection with the incident.
A number of persons testified at the hearing including both Applicants as well as one of the perpetrators of the attack upon the youths and one survivor of the attack. It is not necessary for present purposes to deal with the evidence in any great detail. In view of the fact that the respective applications of the Applicants were based upon different backgrounds, it is appropriate to deal with the respective cases separately. Before doing so, it is necessary to give a brief summary of the salient facts and circumstances of the matter.
The perpetrators of the attack as well as both Applicants were at all material times members of the Security Police unit stationed at Vlakplaas under the command of Col Eugene Alexander de Kock. Just prior to the incident, the Vlakplaas contingent was deployed in Durban under the command of Col De Kock in order to gather information required by the police. As part of this operation, Vlakplaas members were deployed in the townships surrounding Durban.
On the night of the incident some members of the Vlakplaas contingent were to perform certain duties in Chesterville township. Six of the black members of the group were ordered to infiltrate the ranks of the local comrades in Chesterville in order to obtain information relating, amongst others, to an activist, one Charles, who was suspected to have been involved in politically motivated unlawful activities.
During the course of the evening on 19 June 1986, the infiltration group managed, after some effort to make contact with some young activists or comrades who were sleeping in a shack on the premises of a house situated at House No 780, Road 15 in Chesterville township. The infiltration group posed as members of Umkhonto weSizwe ("MK") (the military wing of the African National Congress) who had come to assist the comrades in Chesterville to advance the liberation struggle. At some point during the discussions members of the infiltration group withdrew from the shack and a shooting incident followed during which members of the infiltration group shot and killed four of the occupants of the shack and very seriously injured a fifth one.
There were hotly debated and material disputes of fact amongst the versions of the witnesses in regard to the exact circumstances preceding and giving rise to the shooting incident.
In view of the conclusion we have reached in regard to the matter, it is not necessary for us to finally resolve these disputes in order to decide the applications of the Applicants, who were both not directly involved in the shooting incident. We now proceed to deal with the respective cases of the Applicants.
NICHOLAAS JOHANNES VERMEULEN
This application had been brought on a very narrow basis. The Applicant is seeking amnesty solely for the unlawful possession of an AK47 assault rifle which was in the possession of the group of Vlakplaas members during the incident at Chesterville. This firearm was used at some stage during the incident by the infiltration group as a show piece to convince the group of comrades that the infiltration group were indeed MK members. It appears, however, that the firearm was lawfully obtained from the official Security Police store for the specific use of the Vlakplaas contingent during the infiltration operation in the Durban area. The official written request for the issuing o the firearm dated 3 June 1986 forms part of the record before us as Exhibit D. According to the record, formal approval was given by the Security Police command for the use of the firearm for the stated purpose during the period 3rd to 30th June 1986. To our mind, it is accordingly clear that the use of the firearm in the course of the Chesterville operation was duly authorised and as such did not constitute an offence. Insofar as the Applicant is concerned, he only became aware of the firearm when one of his colleagues who was in charge of the operation, handed the firearm to the infiltration group on the scene in question. He was never physically in possession of the firearm, which was apparently kept in the boot of the vehicle of his colleague.
Mr Cornelius who appeared on behalf of the Applicant, indicated that he had considered the matter and the need for the Applicant to have proceeded with the application and in effect indicated to us that the application was launched as a precautionary measure.
In all the circumstances of the case, we are satisfied that there was no need for launching the application inasmuch as the Applicant had committed no offence in regard to the possession of the AK47 rifle in question.
The application must accordingly be REFUSED.
ALMOND BUTANA NOFEMELA
This Applicant attempted to make out a case of having been an accomplice of the perpetrators of the attack upon the youths. He alleged in his testimony that he in fact drove the vehicle which transported the perpetrators to Chesterville township on the evening of the incident. He indicated that he was aware of the fact that an attack was planned upon comrades in Chesterville, since this was conveyed to him by Col De Kock for whom he had been performing duty as official driver.
The Applicant's alleged presence on the scene at Chesterville was very strenuously disputed by all of the other witnesses, including Col De Kock. Although there is justified criticism that was raised in respect of both these conflicting versions, it appears that the version of the Applicant that the infiltration of the group of comrades and the shooting incident occurred on different days, is incorrect. It is clear from the evidence of the survivor Mr Mbatha, who impressed us as a credible and hones witness, that the infiltration and shooting incident occurred during the course of the evening on 19 June 1986 and the early hours of the morning on 20 June 1980. both accordingly occurred on the same occasion. Under the circumstances, it would have been impossible for Col De Kock to have had prior knowledge of the shooting incident and to have conveyed this information to the Applicant. Moreover, the perpetrator Mr Radebe, indicated that there was no order given to the infiltration group to shoot anyone. In this regard, the witness is supported by the version of his other colleagues except for the Applicant.
It seems to be clear, that the shooting incident occurred on the spur of the moment and possibly as a result of one of the infiltration group having accidentally fired a shot which resulted in the other members of the group immediately responding. It is, however, not necessary to make any final determination in regard to these matters. Suffice it to say, that the Applicant has failed to make out a case supporting the basis of his application to the effect that he was an accomplice of the perpetrators in question.
We are accordingly not satisfied that the application complies with the requirements of the Act. Even if the Applicant transported the perpetrators as he alleged, we are not satisfied that his actions constitute an offence. The purpose of the infiltration group was to infiltrate the ranks of the comrades in the township and obtain information. There was no advance knowledge of or orders given for a shooting.
In the circumstances the application is REFUSED.
DATED AT CAPE TOWN THIS 5TH DAY OF APRIL 2001
A-J D POTGIETER
A-J C DE JAGER
MR JB SIBANYONI
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