DECISION
The applicants apply for amnesty for their participation in the kidnapping and death of an ANC political activist, Mbova Mzimela, also known as, Dion Cele in July 1988. Cele was trained MK soldier who worked in the Manzini area in Swaziland. The South African Security police had information that he was part of the so-called "Natal Machinery" of the ANC responsible for smuggling arms into the country as well as explosions inside the country. Information had been received by the applicant, Vorster, that Cele would be interested in working with the Security Police. This information was obtained from one Goodwill Sikhakane, an informant of the Police who has since died. Taylor (hereinafter referred to as the first applicant, now also deceased) was in command of the operation in terms of which Cele would be abducted, acquired as an informant and then returned to Swaziland. The operation went wrong in that Cele was not prepared to co-operate. Fearing that releasing Cele would cause embarrassment to the then government and lead to the exposure and possible death of Sikhakane at the hands of the ANC, it was decided by the first, fourth and fifth applicants that Cele be eliminated. He was consequently shot and killed and buried in a grave on the farm Elandskop near Pietermaritzburg.
The applications were not opposed by the relatives of the victims who were present at the hearing.
The applicants, with the exception of the first applicant who passed away after submission of his application, all testified at the hearing. The sixth applicant Labuschagne only testified some days after his co-applicants as a result of problems experienced in regard to his legal representation. His evidence will, however, be dealt with as part of this hearing. The Committee is of the opinion that in the absence of evidence of the first applicant is not competent to pronounce on the application of the first applicant despite the fact that this may have certain implications for his deceased estate or heirs.
In addition to the oral evidence of the other applicants documentation relating to the political background in KwaZulu Natal at the time of the incident, was placed before the Committee the correctness of which was confirmed in evidence by the third applicant, Botha. Of particular relevance for this hearing was the evidence also placed before the Amnesty Committee in the application of Brig. J H Cronje and cited in that decision. The relevant section reads as follows:
"According to the evidence before the Committee the police found it impossible to counter the onslaught by using customary policing methods. An espionage network was set up, the liberation movements were infiltrated, informers were used, so-called terrorists were captured and turned into informers or even became members of the security police as so-called Askaris."
The above cited paragraph succinctly sums up the background of the matter before us. The applicants rely on section 20(2)(b) of the Promotion of National Unity and Reconciliation Act, No 34 of 1995, in that they were acting within their authorization as members of the Security Forces. The fact that the order given by Taylor was illegal is neither here nor there. It has been accepted in other matters dealt with by the Amnesty Committee, more particularly the Khotso House amnesty decision, that an act, omission or offence committed by policemen will be regarded as an act, omission or offence within their express or implied authority, if committed in the execution of the functions for which they were appointed, or in the affairs of or the business of the master, or provided that the servant is doing his master's work or pursuing his master's ends." This Committee has no reason to deviate from the above approach.
Each applicant in his evidence explained the extent of his participation in the operation and the Committee is satisfied that they have made a full disclosure of their respective involvement in the abduction and elimination of Cele.
In the execution of the operation some of the applicants had illegally entered Swaziland and part of the offences were committed in Swaziland. The question was raised in argument whether this does in any way present an obstacle in granting amnesty to the applicants.
Briefly, the participation of the applicants can be summarised as follows:
The first applicant, Taylor was in charge of the operation and he was the one who ordered the elimination of Cele.
The second applicant, Brooks was only a police constable at the time. He accompanied Taylor to the border where Cele was brought into South Africa and also to the farm near Amsterdam where Cele was questioned and the farm at Elandskop where he was shot and buried. Brooks returned to his office in Pietermaritzburg before the killing of Cele took place and was never directly involved in the questioning or actual killing of the victim.
The fourth, sixth and seventh applicants Vorster, Labuschagne and Verwey crossed the border into Swaziland ready to assist in the operation. They were in separate vehicles to provide back up to Wasserman and Botha in the combi in which Cele was abducted and which was driven by the informant Sikhakane. They all exited Swaziland illegally after having followed a route indicated by Labuschagne and Verwey whose sole function was to render assistance in this regard on account of their intimate knowledge of the area. They later returned to their station in Middelburg, Transvaal soon after this part of the operation had been completed. At the farm of the Department of Forestry near Amsterdam, Cele was questioned by Botha, Vorster and Taylor, who were also the ones to interrogate him at the farm Elandskop near Pietermaritzburg where he was killed.
The fifth applicant, Wasserman, admitted to having questioned Cele and to having assaulted him at a time that he was alone with him. Wasserman testified that he shot Cele on the orders of Taylor with an unlicensed Makarov pistol which he had obtained from Taylor.
There was nothing to gainsay the evidence of the applicants and nothing so inherently improbable so as to merit any finding that the applicants had not made a full disclosure of all relevant facts relating to the offences for which they are seeking amnesty. The common law wife of the informant, the late Sikhakane, in her testimony sought to show them some aspects of the evidence relating to the abduction were untrue. Her evidence was however mostly based on heresay and no evidential value of substance could be attached to it.
The sister of Dion Cele, also testified and the Committee wishes to record its appreciation for the conciliatory spirit in which she testified. She noted the fact that the applicant Wasserman had expressed a deep sadness to the family for what had happened and she also thanked the applicants for having pointed out the place where Cele was shot and thus having made it possible for the family to afford him a decent burial.
In the light of the above the Committee finds that the applicants have complied with all the requirements for amnesty and accordingly amnesty is GRANTED to the following applicants, namely:
1. JEREMIAS JACOBUS BROOKS for the abduction of Mbova Mzimela (also known as Dion Cele) from Swaziland in or about July 1989;
2. HENDRICK JOHANNES PETRUS BOTHA for:
2.1 the abduction of Mbova Mzimela (also known as Dion Cele) from Swaziland in or about July 1989;
2.2 the unlawful arrest and/or deprivation of liberty of the said Mzimela in or about July 1989;
2.3 contravention of the Border Control Regulations at the border of Swaziland and South Africa in or about July 1989;
2.4 defeating the ends of justice in respect of the murder of the said Mzimela in or about July 1989;
3. JACOBUS ADRIAAN VORSTER for:
3.1 the abduction of Mbova Mzimela (also known as Dion Cele) from Swaziland in or about July 1989;
3.2 the unlawful arrest and/or deprivation of liberty of the said Mzimela in or about July 1989;
3.3 the murder of the said Mzimela at the farm Elandskop near Pietermaritzburg in or about July 1989;
3.4 contravention of the Border Control Regulations at the border of Swaziland and South Africa in or about July 1989;
4. LAURENCE GERALD WASSERMAN for:
4.1 the abduction of Mbova Mzimela (also known as Dion Cele) from Swaziland in or about July 1989;
4.2 the unlawful arrest and/or deprivation of liberty of the said Mzimela in or about July 1989;
4.3 the murder of the said Mzimela at the farm Elandskop near Pietermaritzburg in or about July 1989;
4.4 the assault on the said Mzimela at a farm near Amsterdam in or about July 1998;
3.4 contravention of the Border Control Regulations at the border of Swaziland and South Africa in or about July 1989;
5. FRANS HENDRIK LABUSCHAGNE for:
5.1 the abduction of Mbova Mzimela (also known as Dion Cele) from Swaziland in or about July 1989;
5.2 contravention of the Border Control Regulations at the border of Swaziland and South Africa in or about July 1989;
6. ANTON EUGENE VERWEY for:
6.1 the abduction of Mbova Mzimela (also known as Dion Cele) from Swaziland in or about July 1989;
6.2 contravention of the Border Control Regulations at the border of Swaziland and South Africa in or about July 1989.
In our opinion the next-of-kin of the deceased, are victims in relation to the aforesaid acts for which amnesty is hereby granted and they are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
Dated at
: on this
: day of
Signed:
MALL J
ADV F J BOSMAN
I LAX
