DECISION
Sydwell Mzwamadoda Ntisana (the "1st Applicant"), Zandisile Edwin Bongweni (the "2nd Applicant"), Hlumelo Ndzwanenkulu Mxutu (the "3rd Applicant") and Fundekile Blackie Nombanga (the "6th Applicant") apply for amnesty in respect of conspiracy to commit treason. Pumelele Gumengu (the "4th Applicant") and Thomas Mazizi Ntisana (the "5th Applicant") apply for amnesty in respect of treason.
Towards the end of 1987 the Transkeian government, under the leadership of Prime Minister Stella Sigcau, was overthrown in a bloodless coup d'etat. The country was then governed by a Military Council under the chairmanship of General Holomisa. Colonel Craig Duli was a senior member of such Military Council. During 1989 Colonel Duli was arrested and detained on the suspicion that he was planning to take control of the government. He was released from such detention on 16 December 1989 in compliance with a court order. After his release he left Transkei and went to the Border area.
According to the evidence led before us, Colonel Duli requested the 5th Applicant, who was a former member of parliament in the Sigcau government and who was well known to him, to bring the 1st, 2nd and 3rd Applicants to him for a meeting. The 1st, 2nd and 3rd Applicants were all non-commissioned officers in the Transkei Defence Force and were also known to Colonel Duli, they having previously worked with him. The 5th Applicant took the said other Applicants to Colonel Duli at Stutterheim on 7 January 1990.
At the meeting, which was not attended by the 5th Applicant, Colonel Duli informed the 1st, 2nd and 3rd Applicants that he intended to overthrow the military government and to return Transkei to civilian rule as soon as possible. He told them that the coup d'etat was planned to take place on 15 January 1990 and that he had procured the support of many senior officers in the Transkei Defence Force. He requested the said Applicants to inform lower rank members of the Special Force who were stationed at Port St. Johns of the imminent coup. The said Applicants expressed their support for the plan and agreed to help as requested. They proceeded to Port St Johns where they informed certain members of the Special Force of the coming coup d'etat.
Shortly thereafter it was learnt that the authorities were aware of the planned coup d'etat and it was called off on 14 January 1990. The 1st, 2nd and 3rd Applicants were arrested on 16 January 1990. They were charged with and convicted of conspiracy to commit treason in the Regional Court. They were each sentenced to eight years imprisonment, four years of which was suspended on certain conditions. They all served their term of imprisonment. They were not in any way involved in the failed coup d'etat which took place during November 1990.
We are satisfied that the 1st, 2nd and 3rd Applicants have given a full and truthful account of the role they played in the conspiracy to overthrow the Transkei government during January 1990. We are also satisfied that their acts were associated with a political objective as contemplated by the provisions of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). Their applications for amnesty accordingly succeed.
The 5th Applicant testified that he was strenuously opposed to the government of the Military Council. His main grievance, he stated, was that the Military Council had reneged on an undertaking to hand over to civilian rule. He was not aware of the fact that Colonel Duli had planned a coup d'etat for 15 January 1990. He only heard of such after it was aborted and after the 1st, 2nd and 3rd Applicants had been arrested. He, however, thereafter had various meetings with Colonel Duli during the course of 1990 at which the overthrow of the Military Council was discussed.
Duli planned that the coup d'etat which was to take place on 21/22 November 1990, be in two stages. The first stage, called Operation Sacrifice, involved the actual arresting of power from the Military Council. Duli himself and other persons with a military background were to conduct this stage. The second stage, called Operation Dawn, involved the establishment of an interim government with Paramount and other chiefs. This stage would commence on the completion of Operation Sacrifice and would be conducted by the 5th Applicant.
The 5th Applicant stated that Duli informed him that the coup d'etat would be similar to that which took place during 1987. He therefore did not expect that there would be any fighting or bloodshed involved.
On the night of 21 November 1990 Duli instructed the 5th Applicant to proceed to Umtata via Queenstown, where he was to pick up three members of the Lesotho Liberation Army ("LLA"), and Maclear. The 5th Applicant went to Queenstown and picked up the three members of the LLA. He stated that they were all unarmed. He had some propaganda tape recordings in his possession and a radio set. They then proceeded towards Umtata, keeping in regular radio contact with Duli. The last radio contact with Duli was in the vicinity of Maclear. They proceed to Tsolo where they waited for some time. They still received no further radio contact with Duli and deemed it safer to go back to South Africa. They drove back to Maclear and heard a news flash that the coup d'etat failed. He then took the three LLA members back to Queenstown and he went to East London where he destroyed the propaganda tapes. Some time later the 5th Applicant gave himself up to the Transkeian authorities. He was detained and charged with treason and murder together with a number of co-accused. He was, after a lengthy trial, convicted as charged and sentenced to an effective eleven years imprisonment. He was, during 1994, released from prison after being granted indemnity.
The failed coup d'etat was not non-violent and bloodless as 5th Applicant stated he expected it would be. It commenced with a surprise mortar bomb attack on the new recruits barracks at the Ncise military base. Six recruits were killed in this attack and thirty three others were injured. Fighting also took place in the city centre where a seventh soldier was shot and killed.
We are satisfied that the 5th Applicant acted with a political objective in participating in the failed coup d'etat notwithstanding the fact that he may have been personally advantaged had it succeeded. The whole operation was, in our view, primarily politically motivated and any personal advantage gained by its participants would have been a secondary spin-off.
We are, after careful consideration, also of the view that the 5th Applicant has satisfied the criterion relating to full disclosure. There is no direct evidence to contradict his evidence that he did not know that physical force would be used. His evidence in this regard also cannot be rejected on the basis of it being so improbable as to it being untruthful. He was not involved in Operation Sacrifice and it may well be that that stage of the operation was conducted on the so-called "need-to-know" basis. The criticism of his evidence that he did not give details of the various meetings he attended concerning the planned coup d'etat also does not persuade us that his application should be refused for lack of full disclosure. He, during his testimony, did not decline to answer any questions put to him and there is nothing to indicate that he would have failed to answer questions pertaining to such meetings had they been put to him. We are therefore of the view that his application for amnesty succeeds.
Both the 4th and 6th Applicants were members of the Transkeian police force at the relevant time. The 4th Applicant was a member of the Anti-Terrorist Unit and the 6th Applicant was a member of the Security Branch. They both testified that they were ordered to infiltrate the group that was planning the coup d'etat. The 4th Applicant received his instructions from his superior officer, Captain Mfazwe and the 6th Applicant received his orders from Colonel Booi. Pursuant to such orders the 4th Applicant had at least two meetings with Colonel Duli and relayed the information gleaned therefrom to the police. The 6th Applicant, in carrying out his orders, attended a meeting at Port Shepstone during 1989 with a Mr Mbotoli, who was a leading player in the subsequent failed attempt to overthrow the government. After attending the meeting he reported back to Colonel.
Both the 4th and 6th Applicants deny that they acted in concert with the plotters and that they committed any offence or wrong. They both aver that they were merely performing their duties as policemen. Their legal representative, Mr Malan, correctly conceded that they have not satisfied the requirements of the Act entitling them to amnesty.
In the result:
1. Sydwell Mzwamadoda Ntisana is GRANTED amnesty in respect of conspiracy to commit treason committed by him during or about January 1990;
2. Zandisile Edwin Bongweni is GRANTED amnesty in respect of conspiracy to commit treason committed by him during or about January 1990;
3. Hlumelo Ndzwanenkulu Mxutu is GRANTED amnesty in respect of conspiracy to commit treason committed by him during or about January 1990;
4. Pumelele Gumengu is REFUSED amnesty;
5. Thomas Mazizi Ntisana is GRANTED amnesty in respect of all offences and delicts arising out of the role played by him in the failed attempt to overthrow the Transkeian Government on 21/22 November 1990;
6. Fundekile Blackie Nombanga is REFUSED amnesty.
We are of the opinion that the next-of-kin of the seven members of the Transkeian Defence Force who were killed and the thirty three members of the Transkeian Defence Force who were injured at or near Umtata on 21/22 November 1990 are victims and this matter is referred to the Committee on Reparation and Rehabilitation for consideration in terms of the provisions of the Act.
DATED at CAPE TOWN this
: day of
: 2000.
JUDGE D POTGIETER
JUDGE S M MILLER
MR J B SIBANYONI
