TRC Final Report

Volume 6

Section 1

Chapter 4

Subsection 9

THE DUFFS ROAD ATTACK: APPEAL BY MEMBERS OF THE ORDE BOEREVOLK^{5 4}

92. Mr David Petrus Botha and two other persons, Messrs Smuts and Marais, were convicted in the Supreme Court, Durban, on seven counts of murder, twenty-seven counts of attempted murder and one count of unlawful possession of firearms and ammunition. They were members of a right-wing group called the O rde Boerevolk. All three were sentenced to death on 13 September 1991. This sentence was subsequently commuted to 30 years’ imprisonment.

93. On 9 October 1990, the applicants and their colleagues attacked a bus full of black commuters on Duffs Road, Durban, by shooting at them with automatic weapons. The reason they gave for the attack was retaliation for an incident that had occurred earlier that day, when a group of approximately thirty supporters of the Pan Africanist Congress (PAC) or APLA, wearing PAC T-shirts, had randomly attacked white people on Durban’s beachfront with knives, killing an elderly person and injuring several others.

94. All three applied for amnesty and appeared before the Committee on 5 September 1997.

95. The Committee accepted that Orde Boerevolk was a recognised political organisation involved in a political struggle with the then government and other political organisations, and that their acts were associated with a political objective. In applying the additional criteria set out in section 20(3) of the Act, the Committee distinguished between the roles played by Mr Botha on the one hand and by Messrs Smuts and Marais on the other. The basis for the distinction was that Smuts and Marais were subordinates of Botha and were under orders to carry out the attack as members of the Orde Boerevolk. Botha, on the other hand, had received no order or instructions to carry out the attack; nor had his actions been approved by any one of his superiors or by the organisation.

96. For this reason, Smuts and Marais were granted amnesty. Botha was refused amnesty in respect of the charges of murder and attempted murd e r, but was granted amnesty in respect of the charges of unlawful possession of firearm s and ammunition.

97. Botha appealed to the Transvaal Provincial Division^{5 5} against the Committee’s refusal to grant him amnesty.

Review proceedings

98. The presiding judge, Mr Justice J Smit, held that the Committee had failed to consider properly whether the applicant’s conduct in respect of the attack on the bus had complied with the requirements of section 20(3)(e) of the Act as to whether the ‘act, omission or offence was committed in the execution of an order of, or on behalf of, or with the approval of, the organisation, institution, liberation movement or body of which the person who committed the act was a member, an agent or a supporter’.

99. The court also found that the Committee had misdirected itself in losing sight of the fact that the provisions of section 20(3)(e) were merely criteria to be applied to determine whether an act was committed with a political objective, and not requirements necessary for the granting or refusal of amnesty.

100. As a result of this, the court determined that it could interfere in the Committee’s finding and made an order setting aside the refusal of amnesty and referring the matter back to the Committee to hear further evidence on this point.

Second amnesty hearing

101. On the 13 December 2000, Botha again appeared before the Committee and led evidence by the leader of the Orde Boerevolk, Mr Pieter Rudolph. This evidence did not take the matter any further as Mr Rudolph indicated that he would not have authorised the attack had he been asked to do so by the applicant and that, in any event, he had had no way of communicating with his supporters at the time as he had been in detention.

102. The Committee subsequently refused amnesty to the applicant on the same basis as before, namely that Botha had had no authority from his political organisation to launch such an attack on innocent and unarmed civilians.