: MINORITY DECISION
The above mentioned applicants apply for amnesty in respect of the murders of Mbalala Glen Mgoduka, Charles Jack, Desmond Daliwonga Mpipa and Amos Temba Faku on the Motherwell road in the vicinity of the Uitenhage/Coega crossing in the district of Port Elizabeth during the night of 14 December 1989. Charles Jack's real name was Xolile Sheperd Sakati.
Amnesty is also sought in respect of perjury and defeating the ends of justice flowing from and related to the main offence of murder referred to above, and of conspiracy to commit the above mentioned offences.
The undisputed facts in the applications are:-
All the applicants were members of the South African Police. At the time of the commitment of the offences they and one Gilbert, who has since died, but who was also allegedly involved, had the following positions and ranks in the SAP:
Brigadier Gilbert was the Commanding Officer of the Security Police in Port Elizabeth; Nieuwoudt had the rank of Captain and was in command of the Intelligence unit of the Security Branch in Port Elizabeth, serving under Gilbert. Van Rensburg was serving as Brigadier at the Head Office of the Security Branch in Pretoria and was as such in command of de Kock who was the Commanding Officer of the Vlakplaas unit. The applicants Snyman, Ras and Vermeulen were under the command of de Kock as members of the Vlakplaas unit. Lotz was also attached to the Security Branch and under the overall command of Gilbert and being a junior officer, also under the command of Nieuwoudt. Du Toit and Kok were members of the Technical Support Service Unit, du Toit being the senior in command of the Section. Gilbert has died since the commitment of the offence and his testimony could unfortunately not be obtained. It could have been of great assistance in this matter.
It is common cause that the government of the RSA and the liberation movements were involved in an armed struggle during 1989 when the offences were committed. The deceased Mgoduka, Faku and Mpipa were members of the SAP and Sakati was an askari. All of them were attached to the Security Branch of the SAP in Port Elizabeth. It was alleged in evidence before the Committee that the four deceased became security risks for the security of the State and the lives of informers and that it was decided to eliminate them. The decision to eliminate them was taken by Brigadier Gilbert, the Commanding Officer of the Eastern Cape Branch of the Security Police after considering a report received from Nieuwoudt. Gilbert, according to the evidence, played an active part in the planning and implementation of the plans to eliminate the deceased. He also communicated with senior officers at Security Head Office to obtain their assistance in carrying out the elimination. The result was that he instructed Nieuwoudt to fly to Pretoria, to meet with van Rensburg personally. On his arrival Nieuwoudt met van Rensburg and de Kock who was called in by van Rensburg and ordered to give the necessary assistance to carry out the elimination. De Kock thereupon requested the Technical section of the Security Branch to construct a bomb suitable to be attached to a car. Du Toit and Kok (who was under du Toit's command) constructed the bomb and took it to Port Elizabeth. After their arrival in Port Elizabeth they met Nieuwoudt. He travelled from Pretoria in the company of Snyman, Ras and Vermeulen , the latter three being ordered by de Kock to travel to Port Elizabeth to assist with the elimination. Their specific task was to serve s a back-up force and to kill the targeted people if they might survive the explosion.
During the day of 14 December 1989 du Toit and Kok fixed explosives under the front and back seats of a Volkswagen Jetta and inserted a radio-controlled signal mechanism so that the explosion could be controlled from a distance. They (du Toit and Kok) left Port Elizabeth during the late afternoon of 14 December 1989 after they have attached the explosives to the car and set the igniting apparatus. They returned to Pretoria.
The three members from Vlakplaas, Snyman, Ras and Vermeulen, drove to the scene of the planned explosion during the afternoon, worked out where they would leave their vehicle and where they would position themselves to shoot the victims should they not be killed in the explosion. They returned to the scene that evening after 21H00 where they met Nieuwoudt and saw Lotz arriving with the "loaded" Jetta.
Vermeulen was instructed to remain at the spot where their cars were parked. Ras and Snyman took up position as arranged after Ras had made the final connecting up of the igniting apparatus. The deceased then arrived in a kombi. As previously arranged by Nieuwoudt, they changed vehicles and Lotz drove off in the kombi while the deceased drove off in the Jetta. Seconds later Nieuwoudt activated the explosives and the Jetta was completely destroyed and the occupants blown to pieces. All four were instantly killed. The Vlakplaas contingent of Snyman, Ras and Vermeulen immediately left for Pretoria and Nieuwoudt went back to Port Elizabeth.
At a later stage the ANC was blamed by the SAP to be responsible for the explosion. The question to be dealt with is whether the applicants met the criteria laid down by the Act which would entitle them to be granted amnesty.
At the outset it must be stated that they did contradict each other on certain aspects. This is understandable considering that the event took place almost ten years ago. In essence however, they all supported the evidence as summarised above. There is no doubt that they all participated in either the planning or the execution of the murders. They also disclosed the relevant facts as far as their actual participation in the crimes are concerned. The evidence should now be weighed up a gainst the requirements of the Act.
It is clear that this was not a local operation undertaken by a single policeman or even a local police unit. It involved an operation which included Security Branch members of Port Elizabeth namely Gilbert, Nieuwoudt and Lotz; at least one member of Security Headquarters in Pretoria, namely van Rensburg; the Technical unit of du toit and Kok and the Vlakplaas contingent of de Kock, Snyman, Vermeulen and Ras. It is inconceivable that all the different components could be brought together to act unless an order was issued to activate them. Although Gilbert is dead and could not testify he must have known that the operation involved the deceased as members of his staff. He must have organised the logistics to bring the Technical people as well as the Vlakplaas contingent from Pretoria. He had no power to order the Technical Unit and the Vlakplaas to get involved, so it is clear that they must have acted under the instructions of van Rensburg and/or other authority from Head Office. Van Rensburg himself testified that he was convinced by Gilbert that the elimination was cleared out with Head Office and de Kock and du Toit also testified that as far as they were concerned, they bona fide believed that they were acting on instructions cleared out with SAP Security Head Office.
I now wish to deal with the reasons why I differ from the conclusion arrived at in the majority decision.
De Kock did not impress me as a witness whose evidence could be accepted unconditionally. He was an accomplice. He clearly did not feel well disposed to Gen van Rensburg. He testified that van Rensburg's action to obtain a court interdict during the Motherwell trial was the catalyst which caused him to give evidence against inter alia du Toit, Ras and Nieuwoudt. In his own words the Generals did run away from their responsibility and they did not have the integrity and backbone to accept responsibility. He felt embittered and disillusioned, it made him nauseous, it was in his own words complete treason and he despised them. This attitude towards the Generals (and van Rensburg who in particular was considered as the one who was the catalyst to cause him to make himself available to testify against his former colleagues) required that his evidence should be approached with caution.
He testified that at van Rensburg's house the only reason mentioned for the elimination of two policemen and an askari was the fact that they are causing trouble and "that there was also an issue of fraud" and that there was a lot of pressure on them to charge these members and that they feared that when these members were charged, they would reveal certain offences in which the Security Police had been involved.
He further testified that thereafter there was a brief discussion as to whether an ambush or whether explosives should be used, and that arrangements were made that they would meet at the Technical division with Wahl du Toit. It seems clear that at that time a decision had already been reached that explosives would be used because if not, there would have been no reason to see Wahl du Toit.
I find it strange that de Kock thereafter cannot remember what happened to Nieuwoudt. Nieuwoudt testified that he thereafter drove with de Kock to du Toit because he did not have any means of transport. De Kock testified that he was not satisfied that the victims should be killed because they've committed fraud and went back to see van Rensburg later at Head Office. It is significant that while the doubt occurred while he was walking with Nieuwoudt back to his house, he did not go back to van Rensburg who was still at his house (it was roundabout 6:30) only about 50 yards from his own house. Neither did he ask Nieuwoudt who was with him, for more details.
It is also of importance to note that according to him, he was then already told that the two policemen and the askari was causing trouble and that they could reveal the involvement of the Security Branch in certain offences. He then already had the knowledge that the Security Police were involved in the Goniwe murder and even knew who the members involved were.
Notwithstanding this, and the fact that he had already been told that the Port Elizabeth Security Police feared that if prosecuted, they would reveal certain offences in which the Security Police were involved, he testified that he again went to see van Rensburg to ask him why the people should be killed for fraud. He said that he was then told that the Goniwe case was involved. But this was nothing new - he was already aware of that according to his own evidence about what he was told at the early morning meeting. He then believed it was of critical importance that the operation should be carried out because it would bring about the destruction of the Security Police.
De Kock denied that he was ever told that the deceased threatened to give information to the ANC. On this crucial aspect he is contradicted by all the other applicants:
Vermeulen testified that de Kock summoned himself, Snyman and Ras to his office at Vlakplaas where de Kock ordered them to travel to Port Elizabeth to eliminate "members who had defected and given information to the ANC/SACP". He further testified that his objective in committing the act was to eliminate "the members who had given information to the ANC/SACP, they at that stage, they were the enemy". He regarded the members as supporters and associates of the ANC. It was directly put to him by the counsel appearing for de Kock: "And are you saying that de Kock told you that these people were in the process of going over to the ANC or had already done so?" Answer "yes".
Wahl du Toit testified that de Kock told him that the members committed offences and that they were a security risk and that a decision was taken on a higher level to eliminate them. They should be eliminated by a bomb, so that the ANC could be blamed. In his application he also stated that Nieuwoudt, who was in the presence of de Kock elaborated that according to intelligence received, they have already made contact with the ANC and had discussions with members of the ANC. He was told that it was a matter of extreme urgency and that it was already decided in consultation with Gen van Rensburg that the elimination should involve a bomb. During the discussion it was clear that it involved people who are in the process of defecting to the ANC and who were regarded as supporters of the ANC. He regarded the order as an exceptional order because it involved the killing of colleagues, but he believed that "they were in the point of or involved in treason".
On being questioned whether it was necessary for de Kock and Nieuwoudt to give him details regarding the justification of the operation he answered unequivocally that it was important to him to know. "Yes, it was. What was told to me basically was that these people would go over to the ANC and that would jeopardise the whole intelligence network and people's lives would be endangered."
It is quite clear that at that stage du Toit's only source of information was either de Kock or Nieuwoudt in the presence of de Kock.
Ras told the Committee that he met de Kock at Head Office and was told that they would be needed in Port Elizabeth and that he would explain more fully later. When asked what de Kock told him about the operation (let us assume that was at Vlakplaas) he answered: "All that I can remember is that he told me that there were some problems with members of the Force who wanted to defect to the ANC and there was money involved, which these people had stolen, and that they were threatening to defect to the ANC. There was also mention of the fact that people have been involved in the Goniwe incident". He again repeated that these people were threatening to co-operate or that they would go over to the ANC when he was questioned by a member of the panel about what was said. It is also significant that de Kock told Ras that he, Vermeulen and Snyman should go to Port Elizabeth before anything else was said in van Rensburg's office. His evidence in this connection reads: "He said I had to accompany him to van Rensburg's office. In that office before anything else was said, he said that he was sending me, Snyman and Vermeulen to Port Elizabeth. Brigadier van Rensburg wished us luck and then I left the office. He remained behind in the office".
De Kock's legal representative then put it to him: "I understand that, but it seems to me that he had already chosen his team and the destination had been determined?" The answer was "That is correct".
This in my view does not correspond with de Kock's version that he at that stage was not satisfied that the operation should be undertaken at all.
Ras in cross-examination again confirmed that de Kock told him at Vlakplaas that there were people who threatened to defect to the ANC.
SNYMAN
Snyman testified that the reason for the operation was that information was passed on to the ANC, that as a result thereof the entire intelligence network and structure would be prejudiced, that people co-operating with the police would be identified and that they and their families would then be in grave danger. He also said that mention was made of stolen money but that was not the main purpose for coming to Port Elizabeth but they came as a result of the breach of security which had taken place. He was not sure what information was actually given at Vlakplaas and what information was gained during the journey to Port Elizabeth.
He further testified that he received his instructions direct from de Kock, that it was regarded as very urgent and very necessary to go as quickly as possible. On being asked whether he would have obeyed the instruction if the purpose was to punish the deceased for their criminal actions, he answered: "Yes, I am sure I would have refused and I am also sure that Col de Kock would not have allowed it if it had not been given to him in the way that it was, that it was political and for security reasons."
In view of the above evidence, I cannot accept de Kock's version that it was never mentioned to him that the deceased threatened to walk over to the ANC or that they did, or threatened to, give information to the ANC. This is the crucial reason advanced for their elimination, he conveyed it to almost all the applicants, but now denies that he had ever heard of this, and his denial lead to the conclusion that the discussion with Nieuwoudt focused exclusively on fraud.
The other major point of dispute between the evidence of de Kock on the one hand and van Rensburg and Nieuwoudt on the other hand was whether de Kock visited van Rensburg at Head Office before leaving to see du Toit. Van Rensburg testified that he had to leave for an urgent meeting in Johannesburg and was not available during the day. That was the reason for meeting de Kock at 6:00 in the morning at his house. Nieuwoudt testified that he left with de Kock from van Rensburg's house and did not see van Rensburg again.
De Kock does not know what happened to Nieuwoudt after Nieuwoudt accompanied him to his house and only recollects that he had seen Nieuwoudt again at Wahl du Toit's office. He conceded however that he did not see any vehicle at his house in which Nieuwoudt could have travelled. Nieuwoudt testified that he travelled with de Kock. There is no reason to reject this and that is why de Kock and Nieuwoudt together saw du Toit and together travelled to Vlakplaas. It is however a fact that Ras testified that the accompanied de Kock to van Rensburg's office, after he received instructions to travel to Port Elizabeth. It remains a mystery where Nieuwoudt could have been at the stage unless he was waiting for de Kock in the car.
De Kock, however, in his application never mentioned the presence of Nieuwoudt again. He said that after seeing van Rensburg at his office, he went to du Toit where he spoke to him in the presence of one or both of the Kok brothers. This is contrary to the evidence of du Toit, Kok and Nieuwoudt. Du Toit confirms Nieuwoudt's evidence that he (Nieuwoudt) was present. De Kock also did mention the fact that he had already instructed Ras to go to Port Elizabeth even before he spoke to van Rensburg for the second time. As far as de Kock is concerned, Nieuwoudt disappeared into thin air after walking with him to his house at 6:30 am that morning. I do, however, take into consideration that this happened almost 10 years ago, that conversations of this nature might have lasted only a few minutes and that one or other of the parties may bona fide be wrong as to whether this might have been mentioned at van Rensburg's office or at his home. The fact is, however, that is common cause that it was mentioned at some or other stage. Nieuwoudt also fully disclosed the facts about Goniwe and the fraud in his application.
Whatever the position in this connection might be, according to de Kock, the only additional information given to him in van Rensburg's office was that the deceased may reveal the involvement of themselves and other Security Police in the killing of Goniwe. He was in any event aware of this involvement and even knew the identity of some of the members. It is therefore not clear what de Kock understood, when, according to his own evidence, he was told at van Rensburg's house that the deceased threatened to expose the unlawful activities of the Security Police.
This is even more understandable if one takes cognisance of the fact that during that same period de Kock participated in a plot to kill Dirk Coetzee for the same reason and in fact later killed Brian Ngqulunga for the very same reason. I further wish to refer to paragraph 45 of de Kock's application where he deals with his political objective under the heading "Elimination of people who were members of the Security Police system and whose loyalty to the system were questioned", I quote paragraph 45(b) of his own application: "Enige persoon wat 'n bedreiging vir die Suid-Afrikaanse Polisie daargestel het, moes teen wil en dank om die lewe gebring word as gevolg van die geweldige risiko's wat daar bestaan het indien sodanige persoon die operasies en optrede van die Veiligheidspolisie aan die kaak sou stel."
Another aspect where I hold a different viewpoint is the interpretation of "recruit" and "walk over to the ANC". The fact is that both expressions indicate that the deceased had contact wit the ANC. If they acted as double agents, it would be improbable that they joined the ANC as members and that they would have been recruited as such. I am of the opinion that it is immaterial whether they took the initiative to walk over or whether MK commander Mr Godji Skenyana took the initiative and approached or recruited them.
Nieuwoudt deals fully in both his application and his evidence with steps taken to ascertain whether the deceased in fact played a double role. He might not have been a satisfactory witness in every respect, but there is no evidence to contradict his evidence that he, on the information available, became convinced that they were working with the ANC. Even the wives of the two deceased who were represented and present at the hearing, did not offer evidence to contradict Nieuwoudt's version of their husbands' affinity to the ANC.
I can't reject Nieuwoudt's evidence merely because there may be a suspicion that his evidence is not acceptable on certain aspects. In any event it was not necessary for him even to mention any contact of the deceased with the ANC in order to bring his application within the ambit of the Act. As was stated by de Kock in the portion quoted above, it was considered by him that it would be in the national interest to eliminate the deceased if it was suspected that they would disclose the operations of the Security Force. That was the reason for the attempt on Dirk Coetzee's life and the reason for the killing of numerous people on both sides of the struggle and the main reason for necklacing people. As testified by Snyman, this was considered to be treason.
I also cannot agree with the majority finding that the killing of collaborators or informers under the then prevailing circumstances was wholly disproportionate to the object pursued. If that is the position, I can hardly see how amnesty can be granted to numerous perpetrators who had necklaced or killed people who they suspected to be collaborators or informers. As already stated collaborating with the opposition was seen as treason and even de Kock, whose evidence was accepted for purposes of the majority decision, testified that this and the fact that the deceased might disclose Security Police secret operations, satisfied him that it would be in the "National interest" to eliminate them. That indeed formed the very basis for de Kock's order to his subordinates to carry out the operation.
It is correct that Nieuwoudt was not the best of witnesses. That however does not make him a liar. He fully disclosed in his application the involvement of some of the deceased in fraud and confirmed the contents of his application under oath before the Committee. This is indeed in accordance with the procedure laid down in the amnesty hearings. I fail to see what material facts he did not disclose.
After hearing the evidence and bearing in my mind that the incident occurred almost ten years ago, I am satisfied that the following facts were not or could not be disputed:
1. That Brig Gilbert was the Commanding Officer of the Security Police in Port Elizabeth. That Nieuwoudt and Lotz were serving under his command;
2. That Gilbert took the decision to eliminate the deceased. In doing so he made use of information which he himself had as Head of Security in the area and information obtained from the Intelligence Unit of the Security Branch headed by Nieuwoudt and information which was at his disposal from the uniform branch of the police at Port Elizabeth;
3. That either before or after taking the decision Gilbert contacted the Security Branch Head Office in Pretoria and furnished them with information to at least obtain their approval for sending Nieuwoudt to Pretoria to inform them further and obtain their assistance;
4. Nieuwoudt travelled by air to Pretoria after official approval for this journey and payment of the air ticket had been obtained, and was ordered by Gilbert to report to van Rensburg. Van Rensburg knew both Gilbert and Nieuwoudt as he was previously stationed in Port Elizabeth. Van Rensburg at that time had the rank of Brigadier and was stationed at Security Head Office as Commander of the Vlakplaas Unit. This unit was involved in carrying out eliminations.
5. Although the evidence differed as to whether Nieuwoudt went straight to van Rensburg or whether he first met de Kock at the latter's house 50 - 100 yards from van Rensburg's house, the fact remains that the three of them did meet at 6:00 am on the 13th of December 1989. The elimination of an askari and co-members of the Security Police at Port Elizabeth was discussed.
6. There is a dispute as to what exactly was conveyed at this meeting but it is common cause that de Kock was informed of the decision already taken to eliminate the deceased. Van Rensburg testified that the meeting was arranged at that early hour at his house because he had to go to Johannesburg and would not have been available at office during the morning. De Kock testified that he went to see van Rensburg again round about 8:00 am the same morning at his office to satisfy himself of the reasons for the eliminations. The evidence has been fully dealt with herein before. The fact of the matter however is that de Kock was or became satisfied that the elimination should take place and that it was in the interest of national security.
7. De Kock then requested du Toit to get explosives needed for a car bomb, to travel to Port Elizabeth and to build this bomb into a car. It is also common cause that the use of a car bomb as a means of elimination had already been decided at van Rensburg's house at the 6:00 am meeting.
8. Du Toit believed that de Kock had authority to request him to prepare the bomb and that the operation has been cleared out with the higher command, as was indeed the position.
9. Du Toit thereupon ordered Kok to assist him and they prepared the bomb and travelled on Security Police expenses to Port Elizabeth. De Kock provided the necessary money from funds placed at his disposal.
10. It is also common cause that Nieuwoudt and de Kock together met du Toit and together informed him of the reasons for the elimination. The evidence in this regard has been dealt with.
11. De Kock then ordered Vermeulen and Snyman at Vlakplaas to accompany Ras (who had already been ordered by him) and to travel with Nieuwoudt to Port Elizabeth. The three of them should take care of the killing of the deceased if they should survive the planned bomb explosion.
12. Du Toit and Kok left for Port Elizabeth late afternoon on the 13th December 1989. The Vlakplaas contingent left roundabout noon. The Vlakplaas group arrived roundabout midnight of the 13th and the du Toit group early morning of the 14th.
13. The bomb was built into a Jetta vehicle during the day and Brig Gilbert visited the scene where the preparations took place, during the day.
14. It is obvious that all the Commanders considered the operation to be extremely urgent. The elimination was planned for the same evening of the 14th December 1989.
15. During the earlier part of the day Nieuwoudt contacted three of the deceased and later got hold of the fourth. He arranged to meet them on the Motherwell road later that night. There they would be transferred to the Jetta vehicle and would receive orders to proceed to investigate security related activities further down in the Motherwell vicinity.
16. The Jetta vehicle was driven to the scene by Lotz where he handed the vehicle to Nieuwoudt and left in a kombi. He soon after heard the explosion and returned to the scene.
17. Nieuwoudt after arranging the switch of vehicles by the deceased and seeing them driving off, detonated the bomb by a remote control device which formed part of the explosion system.
18. The Vlakplaas contingent had taken up position lower down the road. Snyman and Ras were armed with AK47's to do the elimination if necessary and Vermeulen guarded their vehicle. After seeing the explosion and noticing that all the deceased were instantly killed, they immediately left for Pretoria.
19. There are numerous other facts and details which are common cause or cannot be disputed because of the lack of any evidence pointing to the contrary. Mere speculation and different theories cannot contribute towards a conclusion based on facts.
20. The number of people to be eliminated was not disputed, Snyman was the only applicant who testified about a fourth person who came into the picture at a later stage. He explained that his statement was misinterpreted. There might have been confusion in the sense that two policemen were involved in the fraud, but it seems always to be the contention that three policemen and the askari were involved in contact with the ANC.
I will now proceed to examine the requirements of the Act in the light of the facts which I have enumerated as undisputed.
The requirements set out in Section 20 of Act 34 of 1995 (the Act) should be considered with regard to each and every one of the applicants. They filed separate applications and although the Committee decided to hear the applications jointly in terms of Section 19(5)(b) they remain separate applications and the evidence and circumstances of an applicant may differ from that of another. Applications cannot simply be refused because there is doubt about the evidence presented by one applicant.
The requirements laid down in Section 20(1) of the Act are objective requirements. The subjective motive of an applicant may be a factor in establishing the facts on which the objective test in the end must be applied. Bearing this in mind, I conclude:-
(a) That all the applications comply with the formal requirements of the Act;
(b) That the offences to which the applications relate are acts associated with a political objective committed in the course of the conflicts of the past. Whether the deceased were killed out of fear that they would join the ANC or convey confidential information regarding informers and methods of operation to the ANC or whether they would disclose secret information about the involvement of the Security Police in for instance the Goniwe murders, the fact remains that it would have been detrimental to the security of the State and would have brought about the destruction of the Security Police. De Kock considered it on the latter ground to be of critical importance that they should be eliminated. Objectively it cannot be denied that these disclosures would have had a big influence on the politics of the day. Regard having had to the wide wording of the Section that the Act should be associated with a political objective, this requirement has been met.
(c) I am of opinion that all the applicants made a full disclosure of all the relevant facts. What are the facts not disclosed: Nieuwoudt dealt over pages in his application with the steps taken since August 1989 to ascertain whether and to what extent the three policemen and the askari made contact with the ANC and whether confidential information was transferred to them. This was done even before the involvement of two of the policemen in fraud which was associated with the "confiscating" of moneys destined to be used by the liberation forces. It is hard even to speculate about relevant facts pertaining to the offences in respect of which amnesty is sought that were not disclosed. Even the gruesome details were testified about. One can only come to the conclusion that a full disclosure of relevant facts were not made if there is a factual basis and not only a mere suspicion or speculation that it was not done. There is no evidence of any relevant fact that was not disclosed.
I am now returning to the requirements of Section 20(2) of the Act dealing with the categories of persons entitled to ask for amnesty.
Although all the applicants may fall under the category of being members or supporters of the National Party, they clearly acted as members of the Security Forces in the present instance. They therefore clearly fall within the provisions of Section 20(2)(b) and Section 20(2)(f) of the Act.
Although it is not clearly stated in the majority judgement, it seems as though it has been accepted by all concerned.
It remains to deal with the provisions of Section 20(3) of the Act in order to conclude whether Section 20(1)(b) has been complied with.
(a) All the applicants (even de Kock) testified that the sole motive for committing the act was political. Applicants de Kock, Snyman, Kok, du Toit, Vermeulen and Ras did not know the deceased at all. De Kock to a certain extent made an independent decision but the rest of the above-mentioned applicants acted on what they believed (and were told) was in the interest of the then government. It cannot be seriously contested on the evidence before the Committee that de Kock was satisfied that the instructions given by van Rensburg were to be followed in the interest of the State and the government of the day which the Security Police served. Nieuwoudt, van Rensburg and as far as it is known, Gilbert, all had the same objective.
(b) The offences were committed in the context of the political struggle waged at the time.
(c) The legal and factual nature of the offence was that murders were committed on victims believed to be collaborators with political opponents.
(d) The objective of the act was to prevent the deceased from joining the ANC and/or divulging information regarding informers and informants to them, thereby crippling the network of the Security Police and endangering the lives of informers. It is not necessary to speculate on how the ANC would have dealt with such informers or collaborators. The offences were directed against people who were seen as traitors and supporters of the political opponents.
(e) Of utmost importance is the undisputed fact that the offence was committed in the execution of an order given by Brigadier Gilbert and approved of by Brig van Rensburg and Capt de Kock. The latter two were officers in lower rank to Gilbert at the time. All the other applicants, Nieuwoudt, Snyman, Lotz, Kok, du Toit, Vermeulen and Ras carried out the orders of the above superiors.
(f) As far as the question of proportionality is concerned, regard must be taken of other decisions of the Amnesty Committee. To judge the present offences to be disproportionate to the objective pursued may render other decisions such as the St James church massacre, the Amy Biehl decision, the Nietverdiendt 10 and the Mxenge case inexplicable. The Committee, although not bound by law to follow precedents, must guard against being inconsequential.
I am satisfied that the requirements of the Act have been met. In the result I would recommend the following order:
amnesty is GRANTED to all the applicants in respect of the following offences:-
1. The murders of Mbalala Glen Mgoduka, Amos Temba Faku, Desmond Daliwonga Mpipa and Xolile Sheperd Sakati alias Charles Jack on the 14th December 1989 near Port Elizabeth.
2. All other offences flowing from or directly connected with the above murders.
I further agree that the next-of-kin of the deceased should be considered in terms of Section 26 of the Act to be victims. If, however, it is decided that the applications do not meet the requirements of Section 20(1)(b) and that the acts were not in accordance with the provisions of subsections (2) and (3) of Section 20, then this recommendation cannot stand.
Signed at Cape Town on the 10th day of December 1999.
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ADV C. DE JAGER SC
