AC/2000/100

APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, NO.34 OF 1995 ______________________________________________________

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:

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.

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.

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

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JUDGE DENZIL POTGIETER

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ADV FRANCIS BOSMAN

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ADV LEAH GCBASHE