DECISION
The incident that gave rise to this matter was the murder of 4 (four) and the attempted murder of 6 (six) people as well as the assault, in a separate incident, of one Abel Sehobodi at the so-called "Radora crossing" on the Krugersdorp - Ventersdorp Road on 12 December 1993. Two children, aged nine and thirteen respectively, were victims of the incident.
The applicants, who will be referred to in the order cited above, were all members of the AWB and on the night of 12 December 1993, set up an illegal "roadblock" allegedly to search vehicles following orders of General Japie Oelofse of the AWB. The fourth applicant, Kloppers, who was the commander of the group, testified as to Oelofse's orders and stated that Oelofse had ordered them not only to set up the roadblock but also to identify targets and exercise hard options. He also testified that he, oelofse, wanted to see "lyke" (corpses). Oelofse had allegedly on a previous occasion also told the second applicant, Martin, that he wanted a severed ear taken from a black person's body. Oelofse, who did not appear in person and who did not formally oppose the applications, through his Counsel, disassociated himself from all the murders, attempted murders and the severed ear.
The applicants, with the exception of the sixth applicant, Diederichs, who was convicted of culpable homicide, were all convicted of the four murders and six attempted murders and sentenced in the then Supreme Court. In addition, some of the applicants were also convicted on charges of assault and/or theft, arising from the theft of a leather jacket, radio cassettes and equipment taken from the victims' cars.
With the exception of the fifth applicant who does not apply for amnesty in respect of the theft of which he was convicted, all the applicants apply for amnesty in respect of all the offences of which they were convicted.
The applications are opposed by surviving victims and relatives of the deceased who were all assisted by the evidence leader.
All the applicants, a member of the AWB who was not personally involved in the incident under discussion, one Myburgh and a Brigadier Kriel, a senior member of the AWB at the time of the incident, testified on behalf of the applicants. Neither of these two last mentioned witnesses had first hand knowledge of the incident or the orders alleged to have been given by Oelofse and little turns on their evidence. One of the surviving victims opposing the applications, one Mothuphi, also testified.
The applications of all the applicants comply with the formal requirements of the Promotion of National Unity and Reconciliation Act, No. 18 of 1995 (hereinafter referred to as the Act).
In order to be granted amnesty the applicants must not only show compliance with the formal requirements of the Act, but must also satisfy the Committee that the acts were committed with a political objective and in the course of the conflicts of the past in accordance with the provisions of Section 20(1) read with subsections 20(2) and (3) of the Act.
Furthermore, the Committee must be satisfied that the applicants had made a full disclosure of all relevant facts as envisaged by Section 20(1)(c) of the Act. In order to decide on this, the Committee must consider all the evidence placed before it by both the applicants and other witnesses.
All the applicants testified and save for the fifth applicant, Van der Schyff, (whose evidence differed in some material respects from that of the others) they all gave evidence in all material respects similar to that of their commander, Kloppers. They testified that they were engaged in an official AWB operation on the orders of the General Staff of the AWB and General Japie Oelofse as conveyed to them by Kloppers, the fourth applicant. The so called orders were given to them by Kloppers at the road house where they had gathered in public prior to the incident. They testified that Kloppers had told them that they were to go out and "work" that night since it was the start of a country wide revolution. The revolution was to start that particular evening. Kloppers furthermore told them that Oelofse wanted them to identify targets, exercise hard options and that he wanted to see "lyke" (dead bodies). They proceeded to various places where alcohol was consumed and eventually to Martin's place. Only on the way and in response to a suggestion to go to the township, did Kloppers communicate to them that Oelofse had ordered the setting up of a roadblock.
They collected the necessary gear and proceeded to Radora Crossing. They stopped and searched a number of cars inter alia the cars in which the deceased and other victims were travelling. According to them the victims were ordered out of the cars and told to sit on an embankment on the side of the road. They were then questioned by the 2nd applicant as to their political affiliations and particularly asked whether they were members of the ANC whom they, the applicants, regarded as their enemy.
Their testimony was generally that they did not see that there were children among the group. While members of the group were being questioned by the second applicant, the fourth applicant, Kloppers, would "lightly tap" them on the head in order to encourage them to cooperate. The members of the group, or at least some, allegedly admitted that they were supporters of the ANC and after a small group of the applicants had assembled, they (the small group) according to Martin decided to shoot the victims. This group consisted of second, third, fourth, eighth and ninth applicants. According to the evidence of Kloppers they did not as a group decide to shoot but he had told them that this was the target, they were going to shoot. This discrepancy in the evidence of the second and fourth applicants on a material point shows that their evidence is not reliable. Three of the applicants, namely the first, sixth and seventh, did not participate in the taking of this decision or the shooting. Van der Schyff, the fifth applicant, participated in the shooting but did not form part of the group taking the decision, or who were told that they were going to shoot. martin, the second applicant fired the command shot and all the others with the exception of Meiring. Andre Visser and Diederichs, who did not have a firearm, followed suit. The first, third fifth and seventh applicants then jumped into a car and fled the scene of the shooting.
The fourth applicant shouted after them that they should all assemble at the City Hall and afterwards reprimanded them for their behaviour. The fourth applicant, Kloppers then ordered Martin, the second applicant, to cut off the ear of one of the victims to be taken to General Oelofse. The jacket of one victim was taken by the fifth applicant, commercial radio cassettes were taken by another, according to him, to ascertain what relevant political information could be gleaned from them. Some tools, allegedly to be used in the course of the struggle were also taken. The empty shells were removed from the scene, the vehicles of the victims were set alight and the rest of the applicants also left the scene thereafter.
The fifth applicant testified that no mention had been made of the alleged planned shooting at any time prior to the setting up of the road block and that his first knowledge of the shooting came after the first shots had been fired at the scene. He further testified that no mention had been made of the revolution or of the fact that Oelofse wanted to see dead bodies. Their purpose was to search for weapons. He was not part of the group that had decided on the shooting. He did however fire shots in the direction of the group because he had received a message that Kloppers had ordered the shooting of the victims. He had simply carried out Kloppers' instruction. At an earlier stage, in an affidavit though, he had stated that he shot because he thought that there was shooting from both sides. He also admitted to having taken the leather jacket of one of the victims for himself, whilst the third applicant took the tools and cassettes for himself. Although the fifth applicant's evidence was not satisfactory in all respects, it did in material respects support the evidence by one of the victims in that he, fifth applicant, testified that he did not hear any of the victims admit that they were supporters or members of the ANC, despite the fact that he stood fairly near them.
The applicants conceded that alcoholic liquor, in varying quantities, had been consumed by them prior to and on the way to the spot where the road-block was set up. They also testified that on their way to the scene of the incident, they had harassed two black people and assaulted an unknown black man, during which incident it appeared some of the applicants had engaged in some frivolous fun amongst themselves. They were allegedly later reprimanded by Klopper, the fourth applicant, for this undisciplined behaviour.
The evidence given by the victim in broad outline confirms the applicants' version as to the course of the events at the scene of the shootings. There are, however, some material differences in regard to the manner in which the victims were questioned and their responses to the questioning. According to the victim, the second and fourth applicants' approach in the questioning of the victims was much more aggressive than they led the Committee to believe and none of the victims admitted that they were members of supporters of the ANC.
There is some support for the victims' version of the style of questioning in the evidence of the fifth applicant who testified that Kloppers had smashed the side screen of the one car and that he had assaulted the occupant of the one car who was unwilling to cooperate. As already mentioned, he had not heard any of the victims admit to being members or supporters of the ANC.
In considering the evidence before it, more particularly that of Mr Kriel, the Committee accepts that the setting up of the road block was in line with general AWB police and that the prime objective was to obtain weapons in this manner. The Committee does not, however, accept that it was policy to kill people at roadblocks. The applicants had all the necessary equipment to carry out this operation with them and this, on the evidence before us, was carried out with some precision until the shooting took place. However, on the evidence of the applicants themselves, it was only decided to put up this particular road block after some liquor had already been consumed. But, even if the required political objective, the committee is not satisfied that the shooting and killings of the victims and the so-called start of the revolution were similarly planned or that the killing of people fell within the broad mandate of the fourth applicant, Kloppers, who had allegedly directly received instructions from General Oelofse.
The reasons for this are the following:
1. The applicants were not in contact by radio or in any other manner with either Oelofse or anybody else of the AWB structures in the other areas to coordinate the "revolution" nor is there any evidence of any operations carried out anywhere else in the country on that fateful night. The applicants could not give any remotely credible explanation for this fact nor do they seem to have been surprised. The inevitable conclusion is that this was no more than a one-off incident gone wrong. This was in fact, the gist of the evidence given by Kloppers at the criminal trial where he testified that the reason for the road block was to obtain arms, that they were under the influence and that the incident had sadly gone wrong.
2. Absence of planning a revolution or the killings was also clear from the fact that they had no plan of what to do with the bodies. This is strengthened by the fact hat when the first car appeared after the shooting, panic and confusion set in resulting in some of the applicants simply running away from the scene. They did not wait for any order. Indeed, so was the disorder that Kloppers was forced to shout at them that they should all assemble at the Randfontein City Hall; clearly there had not been any prior arrangement. There are several aspects in terms of which there had not been prior planning as one would have expected in a military operation of the nature the applicants claim.
3. They say that the order was to identify and kill members of the ANC-SACP alliance, yet the evidence is that the victims were intimidated and assaulted into admitting that they were such members. There is very little reason bo believe that the victims were legitimate targets. The committee rejects the evidence of the majority of the applicants that the victims admitted to being members of the ANC. It is highly improbable that they would have done so in the circumstances and there is evidence to the contrary from the victims as well as one of the applicants.
4. Not only did the applicants consume liquor before launching the supposed revolution but Kloppers their commander, actually took some along. He admitted, albeit after in depth questioning, that consuming liquor just before launching that kind of operation was not good discipline within the AWB: he added, strangely, that he did not see anything wrong with that. Their rather raucous behaviour on their way to the setting up of the roadblock belies any suggestion that they were seriously setting out to start a revolution and strengthens a finding that the applicants were under the influence of liquor.
5. Had the incident been properly planned, as alleged and had the applicants been sober as they now want us to believe, it is improbable that the majority of the victims would have survived the incident.
6. The Committee does not accept that the order came from Oelofse. The vague manner in which the order was allegedly couched "ek wil lyke sien" does not accord with military or even para-military style. Furthermore, it was conceded by Kloppers at the hearing that Oelofse was a military man of precision. Kloppers' explanation that he did not mention Oelofse during the criminal trial in order to protect him is also highly improbable. Finally, there is also the evidence by the fifth applicant that the alleged order in regard to "lyke" was not mentioned at the roadhouse. Having regard to the above, the fourth applicant, Kloppers, is clearly not entitled to amnesty. Even if the Committee was inclined to accept that the killings flowed from the setting up of the roadblock, which at best for the applicants may have been done with a political objective as required by the Act, this application will still have to fail on the grounds that he did not make a full disclosure of all the relevant fats relating to the commission of the offences. The Committee is of the opinion that the reason why the fourth applicant, Kloppers, exceeded his mandate was the fact that the intake of alcoholic liquor, particularly in the case of Kloppers, who probably had the most to drink, had led to the breaking down of inhibitions. This coupled with the frustration of not finding any firearms or other weapons to further their cause to the death and wounding of the victims.
The question now arises, is whether the men under Kloppers' command, who received their orders directly from him are entitled to amnesty. In our opinion, a distinction must be drawn and the question should be answered by reference to four groups. The position of the second applicant, Martin, who was the brother-in-law and a close confidante of the commander, Kloppers and who, according to the evidence, played a leading role in the incident; the position of those, other than Van der Schyff who were not part of the group that decided on the shooting; the position of those, other than Martin, who were told about the decision to shoot or who were in the group that were told that they were going to shoot; and finally the position of Van der Schyff who, had participated in the shooting, but who in our opinion had made a full disclosure of all relevant facts.
We first deal with Martin. He was pivotal to the whole operation. He was, as previously mentioned, Kloppers' close confidante, his second in command and related to Kloppers by marriage. It was his wife who telephoned the others to arrange the meeting at the roadhouse, he was the one to do the questioning, he called the group together when the decision was taken to shoot and finally, he fired the commanding shot. The Committee finds that Martin knew that they were exceeding the bounds of their mandate and that it was he and Kloppers who had made the decision to shoot. There was no reason to shoot the victims. They did not have any firearms or other weapons, they did not admit to being members of the ANC and neither did they offer any substantial resistance to the treatment that was meted out to them. His application for
AMNESTY IS ACCORDINGLY REFUSED: .
The other members of the group acted on the orders of their commanders, Klopper and Martin. However, all the facts above are relevant facts which these applicants omitted to disclose - they did not act simply on the orders of Kloppers, they were in a position to question the reasons for the decision to shoot. The backing up of the evidence of Kloppers that they were told at the roadhouse that they were going to kill people at the roadblock as well as the revolution theory, in the opinion of the Committee, also constitutes a failure to disclose a material fact. Accordingly, the applications of these applicants must also fail.
The first, fifth, sixth and seventh applicants who were not in the group and who did not receive direct orders, cannot be said to have known or to have been in a position to establish the reasons for the decision. Nevertheless, they had associated themselves with everything that might have happened by going with the others well knowing that depending on circumstances it might become necessary to shoot. They, with the exception of the fifth applicant, also backed up the untruth told by Kloppers and the others about the revolution and that the plan to identify targets and kill people had already taken shape prior to the setting up of the road block. Does this constitute a material fact which they had not disclosed to the Committee? If the answer is no, amnesty must be granted to them. The Committee finds that these applicants were taken by surprise when the shooting started and that this was the reason for their panic and their running away from the scene. Their evidence, backing up that of Kloppers', that they were told that there would be killings at the time of the gathering at the roadhouse relates to the reason why the shootings took place and is indeed a material fact that had to be disclosed. Accordingly these applications of the applicants must also fail.
The fifth applicant, Van der Schyff, who, in the opinion of the Committee had made a full disclosure of the relevant facts, had acted on the instruction of Kloppers, conveyed to him by a member of the group. Although his evidence was found to be not all that satisfactory in all respects, it was not such as to bar him from being granted amnesty.
Accordingly the fifth applicant Martinus Lodewickus van der Schyff is
GRANTED AMNESTY: for assault, possession of firearms and ammunition and in respect of the four murders and six attempted murders which were committed at the "Radora" crossing near Ventersdorp on 12 December 1993.
(Signed)
JUDGE B NGOEPE
ADV. FJ BOSMAN
MR W MALAN
ADV. S SIGODI
