DECISION
Applicant is seeking amnesty in respect of an assault upon Mr Mkhuseli Jack at Louis le Grange Square, Security Branch, Port Elizabeth on 12 August 1985. Applicant was a member of the Security Branch, Port Elizabeth of the former South African Police at the time.
Both applicant, who was represented by Mr F van der Merwe and Mr Jack testified at the hearing. It was common cause between them that Mr Jack a high profile political activist in Port Elizabeth at the time, was detained in terms of the applicable emergency regulations. The assault in question occurred in the course of such detention. The versions of the applicant and Mr Jack differ materially on the facts and circumstances surrounding the assault. Before analysing and evaluating these versions, it is necessary to set out the applicable legal principles governing the application.
Section 18 of the Promotion of National Unity and Reconciliation Act, 34 of 1995 (the Act) enables persons who are desirous of doing so, to submit applications for amnesty to the Truth and Reconciliation Commission. Section 19 of the Act stipulates the steps to be taken by the Amnesty Committee (committee) in considering such an application. The specific provisions of these Sections are not strictly germane to this application and are accordingly not dealt with in any detail. The requirements for the granting of amnesty are set forth in Section 20(1) of the Act which provides as follows:
"20. Granting of amnesty and effect thereof.
(1) If the Committee, after considering an application for amnesty is satisfied that
(a) the application complies with the requirements of this Act;
(b) the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsections (2) and (3); and
(c) the applicant has made a full disclosure of all relevant facts,
it shall grant amnesty in respect of that act, omission or offence."
Sections 20(2) and (3) deal in more detail with the meaning of the term "act associated with a political objective" and refer to specified criteria which the Committee should take into account in evaluating specific cases.
It is clear from the above exposition of the applicable legal provisions that is a peremptory and cardinal requirement of the Act that an applicant should make "a full disclosure of all relevant facts" in order to qualify for amnesty. The reason for this requirement becomes quite evident if regard is had to the objectives of the Act and the provisions of the post-script to the Constitution Act 200 of 1993. The latter lays the foundation for the enactment of the Act as well as the issue of amnesty. It is vital for the pursuit of national unity and reconciliation, that the truth is established concerning the past political conflict in our country. The granting of amnesty is a key incentive for perpetrators to disclose that truth.
In order to comply with the requirement of full disclosure, it is necessary for an applicant inter alia to give a truthful and complete account of his/her own role as well as the role of all other perpetrators, in the execution of the particular act forming the subject matter of the amnesty application. A failure to do so is fatal to the success of the application.
The application has now to be considered against this background. The accounts of the applicant and Mr Jack concerning the assault, differ materially. According to the applicant, Mr Jack was brought to his office for interrogation on the day in question, ie 12 August 1985. He was alone with Mr Jack during the interview which concerned Mr Jack's alleged role in the consumer boycott. According to the applicant, Mr Jack was heavily involved in this and other unlawful activities related to the prevailing situation of unrest.
Mr Jack became obstreperous and recalcitrant when applicant confronted him with certain facts about his involvement. Applicant then grab bed a black plastic sjambok and struck Mr Jack several times on his body and legs. Mr Jack thereafter calmed down and applicant noticed that he was experiencing considerable pain. Applicant then stopped the interrogation. Applicant indicated that he perpetrated the assault upon Mr Jack because he was compelled to use methods that would influence Mr Jack to furnish him with information, since Mr Jack refused to give any information or furnish an affidavit.
Applicant submitted that the assault was necessary to achieve his political objective of restoring law and order and ensuring the continuation of the political order, and was accordingly an act associated with a political objective.
It is clear from the above exposition that on the version of Mr Jack, the applicant has failed to make a full disclosure. On this version Mr Jack was subjected to prolonged interrogation, torture and assaults on the occasion in question by a number of police including the applicant. This is contrary to applicant's version as set out above, that he was compelled to use the sjambok after Mr Jack became recalcitrant.
In evaluating the two versions, we have no hesitation in accepting the version of Mr Jack as true. Mr Jack impressed us as a credible witness whose version was coherent and accords with the probabilities. Mr Jack showed no malice or ill-will towards the applicant. In arguing the matter, Mr Jack's legal representative indicated that his instructions were to leave the decision of the matter in the hands of the panel. Although Mr Jack expressed reservations in his testimony concerning applicant's candour, he did not expressly ask for the application to be dismissed.
Applicant has not made a favourable impression on us. Given his view that the Security Police enjoyed virtual unlimited powers at the time and were in fact above the law, Mr Jack's version of the prolonged attack upon him by the police in question is far more probable than applicant's version of a rest rained and limited assault virtually merely to calm Mr Jack down. It is more probable that the interrogation of Mr Jack would have been persistent and prolonged, given applicant's allegations about Mr Jack's role in the situation of unrest which prevailed in Port Elizabeth at the time. It is highly unlikely that applicant would, as he alleged, meekly have stopped the interrogation after having struck Mr Jack with the sjambok. Having considered the matter carefully, we have no hesitation in rejecting applicant's version where it conflicts with that of Mr Jack.
In view of the above conclusion, we do not deem it necessary to deal with the requirements of Section 20(1)(b) in any detail, save to indicate that we are not persuaded in all the circumstances, that the assault was an act associated with a political objective.
In the result, the application for
AMNESTY IS REFUSED: .
DATED AT CAPE TOWN THIS 20th DAY OF NOVEMBER 1997.
JUDGE H. MALL
ADV D. POTGIETER, SC
ADV N. SANDI
