: DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 (the Act). The application relates to the murder of the following persons on 14 December 1989, at or near Motherwell in the district of Port Elizabeth:
1. Warrant Officer Mbalala Glen Mgoduka;
2. Sergeant Amos Temba Faku;
3. Sergeant Desmond Daliwonga Mapipa;
4. Xolile Shepherd Sakati alias Charles Jack.
The deceased were travelling in a police vehicle which was blown up with explosives at approximately midnight on the date in question. The force of the explosion caused pieces of wreckage to be distributed over a radius of 200 metres. The deceased were killed instantly. Sakati was a former member of the African National Congress (ANC) who had joined the Security Police - such persons are commonly referred to as askaris. The remaining deceased were members of the Port Elizabeth Security Police.
Pursuant to the incident 9th applicant (Nieuwoudt), 4th applicant (Lotz), 6th applicant (du Toit), 5th applicant (Kok) and 8th applicant (Ras) were charged for the murder of the four deceased and tried in the South Eastern Cape Local Division of the High Court. On the 14th of June 1996, Nieuwoudt, du Toit and Ras were convicted as charged and sentenced to 20, 15 and 10 years imprisonment respectively. Lotz and Kok were acquitted.
First applicant (de Kock), 2nd applicant (Snyman) and 7th applicant (Vermeulen) testified as State witnesses at the trial. De Kock was himself standing trial in Pretoria on various other charges when he became aware of the Port Elizabeth trial. He made himself available as a State witness and was called to testify. The prosecution successfully applied to reopen the case in order to present the evidence of de Kock. Both de Kock and Snyman were granted indemnity against prosecution, while indemnity was refused to Vermeulen.
The applicants are seeking amnesty for the murder of the deceased as well as for perjury and defeating the ends of justice arising from the incident.
At the relevant time, all of the applicants were members of the Security Police. Nieuwoudt and Lotz as well as the deceased Mgoduka, Faku and Mpipa were members of the Port Elizabeth Security Police. Sakati was also attached to the same Security Branch.
Nieuwoudt was the Commander of the Intelligence Unit and Lotz was a subordinate in the Branch. Third applicant (van Rensburg) was a former member of the Port Elizabeth Security Police who was stationed at the Head Office in Pretoria at the relevant time. De Kock was the Commander of Section C1 of the Security Police situated at Vlakplaas near Pretoria. Van Rensburg was his immediate Commander. Snyman, Vermeulen and Ras were members of Section C1 under the command of de Kock.
Du Toit was the Commander of the Technical Division of the Security Police, which unit was based at Pretoria. Kok was a member of the Technical Division under the command of du Toit.
All of the applicants testified at the hearing and the applications were opposed by the widows of Mgoduka and Faku.
The versions of the applicants are basically to the effect that the Security Police were involved in the planning of the incident and that applicants were responsible for executing the plan. Nieuwoudt was the person most intimately and directly involved in the incident and he played a central role in the killings. Nieuwoudt raised the question of the deceased's suspected involvement in a security breach at the Port Elizabeth Security Police with his Commander, Mr Gilbert, who subsequently gave the order that the deceased should be killed. On Gilbert's instructions Nieuwoudt approached van Rensburg who in turn instructed de Kock to assist in executing the plan to kill the deceased. Du Toit and Kok were approached to assist with manufacturing a remote controlled explosive device to blow up the car of the deceased. Snyman, Vermeulen and Ras were instructed by de Kock to assist and also act as a back up should the planned explosion fail to kill the deceased, in which event they were to shoot the deceased with Eastern Bloc weapons.
On the day of the incident, a police vehicle was fitted with the explosive device and the deceased enticed to collect the vehicle at a secluded spot whereafter the vehicle was blown up resulting in the death of the deceased.
Although the evidence of the applicants coincide in many respects, there are some crucial disputes of fact on material issues between the versions of Nieuwoudt and de Kock which to some extent also involves van Rensburg.
The first issue in dispute relates to the reason for killing the deceased. It is common cause that de Kock, Nieuwoudt and van Rensburg met at the latter's home in Pretoria two days before the incident when de Kock was ordered by van Rensburg to assist in executing the plan. De Kock testified that Nieuwoudt explained that the deceased had to be killed because of their involvement in a fraudulent scheme which entailed the interception and appropriation for personal purposes, of cheques mailed to various trade unions and left-wing organisations (We shall revert to the question concerning the number of deceased who are allegedly involved in the scheme) The police were under pressure to charge the deceased who in turn threatened to expose other unlawful activities in which the Security Police were involved should they be charged. Although he did not immediately challenge this justification for the intended killings, de Kock concluded upon reflection that it was inappropriate to justify the killing of colleagues in particular. He returned to van Rensburg and questioned the justification. Van Rensburg, who was in his office at the time, indicated to de Kock that the matter was much more serious than merely the fraud. He indicated that the deceased could make disclosures relating to the Security Police's involvement in the killing of Matthew Goniwe and other sensitive matters. This further explanation satisfied de Kock that the killings were in the national interest. De Kock is clear that there was no allegation at any stage that the deceased were recruited by or had joined the ANC or that this was the reason for the intended killings. He indicated that he would have had no reservations to execute the plan should this have been mentioned to him and he would also not have returned to van Rensburg to question the plan.
Nieuwoudt, on the other hand, testified that the only reason, and the one which he gave to de Kock, for the intended killings was the fact that the deceased had been recruited by and was working with the ANC. He emphatically denied that the fraud played any role in the decision to kill the deceased. He testified that he had no knowledge of the fraud, except for the fact that this was mentioned in passing at some stage by Gilbert. He was extremely vague and hesitant when questioned about the possibility that he referred to the fraud in his discussions in Pretoria with de Kock and van Rensburg. Although he was adamant that he raised the issue of the recruitment of the deceased as the reason for the intended killing, he was not prepared to commit himself to a clear version on the issue of the fraud. The details, which were not in dispute, concerning the alleged involvement of the deceased in the fraudulent scheme testified to by de Kock could only have been furnished to him by Nieuwoudt. De Kock did not know the deceased at all and had no personal knowledge of their actions. This is further support for the version of de Kock that his discussion with Nieuwoudt focused exclusively on the fraud.
Nieuwoudt confirmed that the killing of Matthew Goniwe was mentioned without giving any further details as to when exactly this happened. He also confirmed that three of the deceased were involved in that killing. It makes sense that this killing would have been one of the issues which the deceased threatened to expose as was explained to de Kock by van Rensburg.
Van Rensburg purported to corroborate Nieuwoudt on the issue of the reasons given for the intended killings. He, however, was at pains to indicate that he was actually in a hurry to keep another prior commitment and did not involve himself in much of the detail. His position was that Gilbert had indicated that authorisation had been obtained for the operation and he was happy to simply get de Kock involved in executing the plan. He played a relatively minimal role in the whole matter. He insisted that he went straight from his home to the other appointment and did not first call at the office. De Kock could therefore not have approached him at the office. Van Rensburg's version on whether or not the fraud was mentioned is contradictory and highly unsatisfactory. The record and the written argument submitted on behalf of de Kock amply reflect the discrepancies in this regard between van Rensburg's written application and his evidence as well as the written application and evidence of Nieuwoudt.
De Kock's version about his visit to Van Rensburg's office is corroborated by Ras who indicated that he accompanied de Kock to van Rensburg's office, on the day of Nieuwoudt's visit to Pretoria, where reference was made to the Port Elizabeth operation.
De Kock has generally made a very favourable impression on us. He testified in a fair but forthright manner. He had no reason to falsely implicate any of his co-applicants. He was given indemnity against prosecution in the criminal trial and there is no prospect of any civil action against him. He has impressed us as a credible witness and we have no hesitation in accepting his version as true.
Nieuwoudt has failed to make a favourable impression on us. He was deliberately vague and often evasive on the issue of the importance of the fraud in the decision to kill the deceased. He tried unsuccessfully to minimise the importance of the fraud to the Security Police and testified that this arose merely as an after-thought on the part of Gilbert. His lack of knowledge of the fraud is highly improbable given his evidence that he intensively monitored the deceased prior to the incident. It is not difficult to understand that the fraud and the concomitant threat made by the deceased must have posed a great danger to the Security Police in Port Elizabeth. Moreover, it makes logical sense that the deceased would have made such threats to avert a criminal prosecution. They obviously regarded it as unfair to be prosecuted alone while the Security Police have been involved in numerous other illegal activities for which they have not been prosecuted. We have no hesitation in rejecting Nieuwoudt's version as false where it conflicts with that of de Kock. For the reasons stated above, van Rensburg's purported corroboration of Nieuwoudt is unreliable. Like Nieuwoudt, van Rensburg has a lot at stake and would thus make every effort to secure the success of the amnesty application. Van Rensburg's version is likewise rejected where it conflicts with the version of de Kock.
We accordingly find that the reason for killing the deceased was to avert their threats and to conceal the illegal activities of the Security Police. This was patently not associated with a political objective and the action was clearly not directed against members or supporters of the ANC or any other liberation movement or publicly known political organisation as required by the Act. It should be mentioned in the latter regard that even on Nieuwoudt's own version there was no reasonable basis for concluding that the deceased were either members or supporters of the ANC. In spite of having intensively monitored the deceased for some time since August 1989, it was eventually only the hearsay report of an informer that finally convinced him that they were recruited by the ANC. He accepted this report as true and never considered or investigated the possibility that this was disinformation. Van Rensburg who knew most of the deceased well as former colleagues, testified that he had no reason to doubt their loyalty.
Nieuwoudt himself unsuccessfully attempted to extract information from the deceased to confirm his suspicions. His evidence that Mgoduka was writing coded messages to well-known ANC addresses while he knew that letters to these addresses were intercepted by the Security Police, is patently ridiculous and lacks any credibility at all. His evidence that he could identify Mgoduka's signature on the letters, even though they were signed under a false name, and that he could see that they were typed on Mgoduka's typewriter, is even less convincing. His evidence about the contents of a tape recording of a conversation among the deceased, at best indicate that they were contemplating approaching the ANC. This would certainly not render them members or supporters of the ANC. None of these factors relied upon constitute reasonable grounds for Nieuwoudt's conclusion or justification for the murders.
The further issue in dispute relates to the number of persons who had to be killed. De Kock testified that Nieuwoudt only referred to three persons who had to be killed, namely two members of the Port Elizabeth Security Police and an askari. The specific people were unknown to de Kock. Nieuwoudt disputed this version and insisted that he referred to four persons. It is significant in this regard that on Nieuwoudt's version, not all of the deceased were to be charged in connection with the fraud. It is obvious that it would only have been the persons who were at risk of being charged who would have threatened to make disclosures in an attempt to stop their prosecution. The probabilities are that only they would have been the tar gets for any intended action by the Security Police. This supports de Kock's version that only three persons were referred to.
For the reasons already stated we accept the version of de Kock. The probabilities are overwhelming that the fourth person was killed simply because he happened to be in the company of the other deceased at the fateful time. This killing was therefore wholly unjustified.
We accordingly also find that the applicants, except de Kock, have failed to make a full disclosure concerning the reason for the killings and the number of persons whom they decided to kill.
It is furthermore our view that the killing of the deceased was wholly disproportionate to any objective which applicants might have pursued. The evidence relied upon to link the deceased to the ANC is inconclusive and unconvincing. Moreover, there is no credible evidence establishing whether the deceased furnished any confidential information to the ANC at all. In his testimony, Nieuwoudt relied upon a subjective belief that they had done so. He conceded that should that have been the case, killing the deceased would have served no purpose since the information had already been passed on. He protested that there would be still further information which the ANC could extract from the deceased during a debriefing session, although he failed to give any particulars about such further information. He conceded that the detention of the deceased would preclude such debriefing by the ANC. Most significantly Nieuwoudt himself testified that, in his view, it was not necessary to kill the deceased. He indicated that Gilbert's initial response was that the deceased should be transferred. The decision to kill the deceased only came after Nieuwoudt made further representations to Gilbert. Nieuwoudt conceded that it is generally agreed in all the authoritative writings that killing was the absolute last resort in such circumstances of counter-insurgency and counter-intelligence. In this instance the killings were definitely not justified.
In the circumstances and after having carefully considered all of the evidence, arguments and material placed before us, we are not satisfied that the applications comply with the requirements of the Act.
In the result the applications are REFUSED.
We are of the opinion that the next-of-kin of Mbalala Glen Mgoduka, Desmond Daliwonga Mpipa, Amos Temba Faku and Xolile Sheperd Sakati, are victims in relation to the killings and the matter is accordingly referred for consideration in terms of Section 26 of the Act.
Dated at Cape Town this 10th day of December 1999.
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B. NGOEPE. J.
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DENZIL POTGIETER, A.J. ADV. C. DE JAGER S.C.
