AC/2001/152

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.

______________________________________________________

VEJAYNAND RAMLAKAN 1ST APPLICANT

(AM4012/96)

DEREK NAIDOO 2ND APPLICANT

(AM4017/96)

DHANPAL NAIDOO 3RD APPLICANT

(AM4007/96)

JUDE FRANCIS 4TH APPLICANT

(AM4011/96)

DAVID MADURAI 5TH APPLICANT

(AM4013/96)

RICHARD VALLIHU 6TH APPLICANT

(AM4010/96)

SIBONGISENI DLOMO 7TH APPLICANT

(AM6389/97)

SIBUSISO MBONGWA 8TH APPLICANT

(AM4016/96)

ORDWAY Q MSOMI 9TH APPLICANT

(AM4015/96)

DECISION

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Each of the Applicants were active members of the African National Congress (ANC) and its military wing uMkhonto weSizwe (MK). They all participated in some way or another in "Operation Butterfly" which was an operation designed by the ANC to integrate the political machinery with the military. To do this it was planned to establish strong and viable underground structures of MK in the Durban area and to intensify military operations. It was part of the operation that they should come out strongly in support of workers including active support of strike action.

In consequence of the action taken by members of MK to further the aims of Operation Butterfly, a number of them were arrested, charged and convicted before Thirion J in S v Buthelezi and others. Among the offences charged were the following:

(a) Causing explosive devices to explode at the undermentioned

places causing damage:

(i) at Spar Foodliner, Trust Bank Arcade, Smith Street, Durban on 18.4.1985;

(ii) at XL Restaurant, South Beach walk, Durban on 14.6.1985;

(iii) at offices of Natalia Development Board, Lamontville Township on 16.6.1985;

(iv) at Umlazi Bakery in N Section, Umlazi on 31 July 1985 (erroneously stated as 21.7.1985);

(v) at Minister Rajbansi's house at Road 601, Chatsworth on 4.8.1985;

(vi) at OK Bazaars, West Street, Durban on 27.9.1985;

(vii) at Executive Hotel, Umlazi on 29.9.1985;

(viii) at Grosvenor Girls High School, the Bluff, Durban on 24.10.1985;

(ix) at Mobeni Post Office on 8.12.1985;

(x) at Chatsworth Magistrate's Office on 13.12.1985;

(xi) near corner of Albert and Pine Streets, Durban when the kombi of de Jongh was destroyed on 21.12.1985;

(xii) at Sanlam Shopping Centre at Amanzimtoti on 23.12.1985.

(b) The placing of an explosive device in Spar Foodliner, Trust Bank Arcade, Durban on 27.9.1985, which device was discovered and rendered harmless before it exploded.

All the facts for which the Applicants now seek amnesty featured in this case and the following Applicants were accused:

Applicant 1 - Accused 3

Applicant 4 - Accused 5

Applicant 7 - Accused 2

Applicant 8 - Accused 4

Applicant 9 - Accused 6

The second Applicant was convicted of terrorism in the Regional Court; the remaining three Applicants (3, 5 and 6) have no convictions arising from the acts in respect of which they now seek amnesty.

As we have said, all the acts for which the Applicants seek amnesty featured in the Buthelezi trial, although the explosions at Game and Checkers on the 27th September 1985 were not the subject of charge but evidence was led about them.

The Committee was given a list of incidents in chronological order, they accord largely with the list set out above but we think it convenient to set out this list as well as it was used during evidence and in the course of argument.

Incident 3 : 18 April 1985 : Durban Spar Foodliner sabotage.

Incident 4 : 16 June 1985 : Port Natal Admin Board offices at Lamontville.

Incident 5 : 16 or 18 June 1985 : Umlazi KZP station blast.

Incident 6 : 19 June 1985 : Durban beach front, XL T-Room explosion.

Incident 7 : 31 July 1985 : Umlazi Bakery sabotage.

Incident 8 : 27 September 1985 : Durban OK Bazaar, West Street, 2 mini-limpets explode.

Incident 9 : 27 September 1985 : Durban limpet mine explosion at Game Discount World between West and Pine Streets.

Incident 10 : 27 September 1985 : Spar Foodliner West Street, Durban.

Incident 11 : 27 September 1985 : Checkers Smith Street, Durban - Terrorism.

Incident 12 : 28 September 1985 : Durban, Executive Hotel, Umlazi.

Incident 13 : 24 October 1985 : Grosvenor Girls' School, Bluff explosion.

Incident 14 : 8 December 1985 : Mobeni Post Office, Grimsby Road, limpet mine explosion.

Incident 15 : 21 December 1985 : Durban cnr Pine and Albert Streets, VW combi bomb explosion.

Incident 16 : 23 December 1985 : Amanzimtoti explosion in Sanlam Shopping Centre.

Incident 17 : 13 December 1985 : Chatsworth Magistrate's Court, explosive device detonated.

Incident 18 : 4 August 1985 : Minister Rajbansi's house damaged by mini-limpet.

None of the present Applicants were involved in Incidents 3, 4, 5, 6 and 7.

The Applicants all gave evidence before us in which they confirmed that they were members of the ANC and MK and that they had carried out the acts for which they now sought amnesty as part of their duties as members of these organisations and on the orders or instructions of their commanders. We are satisfied as was the trial court in the Buthelezi trial, that this was being done in the course of the political struggle against what they regarded as the oppressive apartheid State. We are satisfied that they have made a full disclosure of all relevant facts, that the acts were not for personal gain or out of personal malice.

There was some suggestions that they may have acted recklessly in causing explosions which resulted in the death or injury of civilians. It is one of the tragedies of a struggle of this kind that there will always be civilian casualties and in this regard we refer to a passage from the judgement of Thirion J where he said:

"What does appear clearly also from the documents referred to, is that the ANC leaders foresee that attacks by the ANC might cause the death of civilians and that they accept this as one of the consequences of ANC operations. They also accept that ANC operators in carrying out tasks set by them might at times attack civilian targets or that they might set off explosions in places frequented by civilians. In fact, such incidents have occurred. In 1983 a powerful bomb was exploded by ANC operators in a busy street in Pretoria which caused the death of 19 persons. While the intended target might have been military personnel, it must have been obvious to those responsible for the operation that fatalities among civilians would be unavoidable. Evidence in the present case also indicates that ANC operators are willing to run the risk of killing civilians. Incidents of this nature are the explosion at the XL cafe, the explosion in the foyer of the Mobeni Post Office, the explosion in the passage of Sanlam Centre in Amanzimtoti and the planting of the bomb in Spar Supermarket.

The ANC leaders therefore foresee and they accept and are reconciled to the likelihood that the ANC operations would cause the death of civilians. In these circumstances it seems to us to be idle to argue that the ANC does not intend the probable consequence of its conduct; namely the killing of civilians."

We are accordingly of the view that the Applicants have met all the requirements of the Act, in particular those set out in Section 20(1), 20(2)(a) and having regard to the requirements of Section 20(3).

We accordingly GRANT amnesty to the Applicants as set out below and for any act, omission or offence flowing from these acts:

V Ramlakan in respect of:

(a) the recruiting by him of Jude Francis, Rev and Dhanpal Naidoo and the training by him of Francis and Rev in the use of explosives and the establishing of arms caches in contravention of Section 54(1)(ii), (iii) and (iv) of Act 74 of 1982.

(b) the training by him of one Nqutu and Mapiki Aaron Klomo in the use of explosives in contravention of Section 54(1)(ii), (iii) and (iv) of the said Act.

(c) the supplying of an explosive device to others and planning with them an explosion at the Magistrate's Court, Chatsworth on 13 December 1985 in contravention of Section 54(1) (i), (ii) and (iii) of the said Act. (Incident 17).

(d) The supplying to others of an explosive device and planning with them an explosion at Rajbansi's house on 4 August 1985 in contravention of Section 54(1)(i), (ii) and (iii) of the said Act. (Incident 18).

Derek Naidoo in respect of:

(a) The causing of an explosive device to explode at the Magistrate's Court, Chatsworth on 13 December 1985 in contravention of Section 54(1)(i), (ii) and (iii) of the said Act. (Incident 17).

(b) The causing of an explosive device to explode at Rajbansi's house on 4 August 1985 in contravention of Section 54(1)(i), (ii) and (iii) of the said Act. (Incident 18).

Dhanpal Naidoo in respect of:

(a) The causing of an explosive device to explode at the Magistrate's Court, Chatsworth on 13 December 1985 in contravention of Section 54(1)(i), (ii) and (iii) of the said Act. (Incident 17).

(b) The causing of an explosive device to explode at Rajbansi's house on 4 August 1985 in contravention of Section 54(1)(i), (ii) and (iii) of the said Act. (Incident 18).

Jude Francis in respect of:

(a) The causing of an explosive device to explode at the Magistrate's Court, Chatsworth on 13 December `985 in contravention of Section 54(1)(i), (ii) and (iii) of the said Act. (Incident 17).

(b) The causing of an explosive device to explode at Rajbansi's house on 4 August 1985 in contravention of Section 54(1)(i), (ii) and (iii) of the said Act. (Incident 18).

David Madurai in respect of:

(a) The causing of an explosive device to explode at the Magistrate's Court, Chatsworth on 13 December 1985 in contravention of Section 54(1)(i), (ii) and (iii) of the said Act. (Incident 17).

(b) The causing of an explosive device to explode at Rajbansi's house on 4 August 1985 in contravention of Section 54(1)(i), (ii) and (iii) of the said Act. (Incident 18).

Richard Vallihu in respect of:

(a) The causing of an explosive device to explode at Rajbansi's house on 4 August 1985 in contravention of Section 54(1)(i), (ii) and (iii) of the said Act. (Incident 18).

Sibongiseni Dhlomo in respect of:

(a) The training of him of Vusumuzi Wesley Mahlobo and Frank Malungo at Alan Taylor Residence in the use of limpet mines in about August 1985 in contravention of Section 54(1)(ii), (iii) and (iv) of the said Act.

(b) The fetching by him of three militarily trained members of the ANC, including Mbongwa, from Ingwavuma and bringing them to the Durban area for the purpose of training other persons for the ANC in the use of arms and explosives to enable such persons to commit acts of violence in support of the aims of the ANC to overthrow the State authority in the Republic. This constituted a contravention of Section 54(1) (ii) and (iii) of the said Act.

(c) The supplying by him of other persons with explosives and explosive devices which could have been used to cause an explosion at OK Bazaar West Street, Durban on 27 September 1985 in contravention of Section 54(1) (ii), (iii) and (iv) of the said Act. (Incident 8).

(d) The supplying by him of other persons with explosives and explosive devices which could have been used to cause an explosion at Game Discount World, West Street, Durban on 27 September, 1985 in contravention of Section 54(1) (ii), (iii) and (iv) of the said Act. (Incident 9).

(e) The furnishing by him of other persons with explosives and explosive devices which could have been planted at Spar Foodliner, Trust Bank Arcade, Durban on 27 September 1985 in contravention of Section 54(1) (ii), (iii) and (iv) of the said Act. (Incident 10).

(f) The supplying by him of other persons with explosives and explosive devices which could have been used in causing an explosion at Checkers, Smith Street, Durban on 27 September 1985 in contravention of Section 54(1)(ii), (iii) and (iv) of the said Act. (Incident 11).

(g) The furnishing by him of other persons with explosives and explosive devices which could have been used to cause an explosion which occurred at the Executive Hotel, Umlazi, on 28 September 1985 in contravention of Section 54(1) (ii), (iii) and (iv) of the said Act. (Incident 12).

(h) The supplying by him of other persons with explosives and the explosive devices which could have been used to cause the explosion that killed Zinto Cele and Mandlenkosi Ndimande and injured Sibusiso Mazibuko at Grosvenor Girls' School on 24 October 1985 and which were intended to be detonated at the said school, in contravention of Section 54(1) (ii), (iii) and (iv) of the said Act. (Incident 13).

Sibusiso Mbongwa in respect of:

(a) His entering RSA and proceeding to Alan Taylor Residence, Durban with the intention of meeting those in charge of MK there and conducting the training of members of the ANC politically and militarily to enable them to commit acts of violence in support of the aim to overthrow the State authority in the Republic by force in contravention of Section 54(1) (ii) and (iii) of the said Act.

(b) The training by him of Vusumuzi Esley Mahlobo and another on political matters and explaining to them about booby traps and speaking to them about reconnaissance, surveillance and revolution in contravention of Section 54(1) (ii) and (iii) of the said Act.

Qonda Msomi in respect of:

(a) The establishment of a DLB consisting of arms, ammunition, explosives and explosive devices and removing the undermentioned items therefrom and taking them to Umgababa:

Two VZ 25 submachine guns (She Petersen)

One remote control device.

One block of TNT.

One silencer for an AK-47 machine rifle.

One electrical detonator.

Three electronic timing devices.

One TM 57 landmine and detonator.

Two books on explosives.

This constituted a contravention of Section 54(1) (ii) and (iii) of the said Act.

(b) The receiving of training from one Stan in the use of firearms, explosives and explosive devices in contravention of Section 54(1) (ii) and (iii) of the said Act.

(c) The establishment of or the rendering of assistance in the establishment of a DLB at or near Umgababa which contained a cache of arms consisting of the following:

One VZ 25 submachine gun.

Three loaded magazines for the above.

One belt.

Two lengths detonating fuse.

One 200g block of TNT.

One TM 57 landmine.

Three detonators for TM 57 landmine.

One remote control charge.

One time switch.

Twenty two electrical detonators.

This act was in contravention of Section 54(1) (ii) and (iii) of the said Act.

(d) The instructions he gave that a limpet mine be detonated at OK Bazaar West Street Durban on 27 September 1985 in contravention of Section 54(1) (ii), (iii) and (iv) of the said Act. (Incident 8).

(e) The instructions he gave to Thuso Tshika to detonate a limpet mine at Game Discount World, Durban on 27 September in contravention of Section 54(1) (ii), (iii) and (iv) of the said Act. (Incident 9).

(f) His participation together with the said Tshika in the detonation of a limpet mine at the Mobeni Post Office on 8 December 1985 in contravention of Section 54(1) (ii), (iii) and (iv) of the said Act. (Incident 14).

(g) His participation together with the said Tshika in the detonation of an explosive device near a VW kombi at the corner of Pine and Albert Streets Durban on 21 December 1985 in contravention of Section 54(1) (ii), (iii) and (iv) of the said Act. (Incident 15).

Unfortunately, the identity of all the victims have not been supplied to us as in many cases the police dockets are no longer available. What we have been told is:

In incidents 3, 4, 5, 7, 8, 9, 10 and 11 no injuries were established.

In Incident 6 seven people were injured, their identities are unknown and none of the Applicant have applied for amnesty in respect of this incident.

In incident 13 Zinto Cele, son of Thabiso Racharebe, mother Lindy Seimens and Sibusiso Mazibuko were injured. Mandlenkosi Ndimande was killed while planting the bomb.

In incident 14 those injured were the Nair family, Narain Nair, Audrey Nair, Rajendran Nair, Gregory Naidoo, Dawn Dudley Loots and Anthony Dexter van Heerden.

In incident 15 the victims were Ina de Jong and her two daughters.

In incident 16 five people were killed and nine injured in the explosion at the Sanlam Shopping Centre in Amanzimtoti. Once again, none of the Applicants has applied for amnesty in respect of this incident.

The Committee is of the opinion that the relatives and dependants set out above are victims and they are referred in terms of Section 22(2) to the Committee on Reparation and Rehabilitation for consideration in terms of Section 26 of Act 34 of 1995.

SIGNED AT CAPE TOWN ON THE DAY OF 2001

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WILSON J:

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MR I LAX:

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MR J B SIBANYONI

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