DECISION
The applicants apply for amnesty for the killing of Tholinhlanhla Blessing Mabaso, Thabani Brian Memela, Luvuyo Angelius Percival Mgobozi and Mbongeni Henry Zondi ("the deceased") on 7 September 1986 at the Quarry Road off-ramp on the southbound N2 Highway, Durban.
It is common cause that all applicants were members of the South African Police's Special Branch at the time of the incident.
It is also common cause that Mamela was a trained member of MK. The applicants say that his companions were locally trained "terrorists".
The applicants testified they had received information that Mamela and his group were responsible for an attack on Winnington Sabelo's home in which his wife and children were injured. They had also received information that Mamela and his group were at a house in KwaMashu that was being kept under observation by two police officers.
The applicants testified that their information indicated that the four deceased were planning to attack the home of a black Counsellor. In order to avoid exposing their informant it was decided not to effect an arrest at the house and it was decided that Mamela and his group would be intercepted and arrested en route.
It was believed that the group was armed with AK47's, handgrenades and explosives and because of this the assistance of the Reaction Unit under Lt. Breytenbach was requested.
Accordingly, the Reaction Unit and other policemen, including the applicants, gathered at the KwaMashu police station during the course of the day. According to Breytenbach's affidavit in the late afternoon a radio message was received advising that the group armed as mentioned above was leaving the house in a blue Toyota Cressida. All the police members present hurriedly left in a variety of vehicles with a view to stopping the vehicle and apprehending the group.
After some time Botha and Steyn who were at that stage travelling south on the N2 spotted the vehicle. Steyn shouted over the radio that the vehicle had been spotted and gave their location. They were soon joined by another vehicle, a kombi driven by Nduli with Wasserman and Lembede. Close behind were at least two vehicles with members of the Reaction Unit.
According to the evidence of Botha he drove his vehicle in the left-hand lane of the road, with the Cressida in the centre lane.
Botha says he drove his vehicle alongside the Cressida and shouted and gesticulated to the occupants that they were police and that the vehicle should stop. He said the Cressida twice swerved towards him in an attempt to ram his vehicle off the road. At this stage the kombi had caught up and was alongside the Cressida on its right-hand side.
Botha, having fallen back, fired a number of shots with his service pistol at the rear left tyre of the Cressida. Wasserman and Lembede seeing and hearing gunshots believed the occupants of the Cressida were shooting at them and opened fire at the Cressida with their service pistols. When Steyn and Botha saw and heard the shots of Wasserman and Lembede they also thought the occupants of the Cressida were shooting. Someone shouted words to this effect over the radio.
The kombi overtook the Cressida and stopped in front causing the Cressida to collide with the rear of the kombi.
Wasserman and Lembede jumped out of the kombi and fired at the Cressida. Almost immediately the members of the Reaction Unit arrived on the scene and opened fire on the Cressida.
Once the firing had ceased Botha and Steyn went to the Cressida and found that the four occupants of the Cressida had died. They searched the vehicle and were surprised to find no weapons or explosives. Steyn and Botha then decided to send Wasserman to fetch the arms and explosives that were thought to be at the house in KwaMashu. They intended to plant the weapons in the Cressida so as to make it appear as if the deceased had been armed and that they had been killed in self-defence.
With this in mind Steyn and Botha cordoned off the area preventing the other policemen and the public from coming close to the Cressida. Wasserman returned with a bag containing AK47's and hand grenades that he gave to Botha who surreptitiously planted them in the Cressida.
As a result of investigations by the police an inquest was held. At the inquest Botha gave perjured evidence that the deceased were armed and that they were killed in self-defence. As a result of this and other false evidence the inquest found no one to be criminally responsible for the deaths of the deceased.
All the applicants maintained that they acted in the execution of their duties as members of the SAP and that their actions were directed against the perceived onslaught by the liberation movements. They believed that the four deceased were trained "terrorists" and as such had to be wiped out.
The relatives of the four deceased were present and represented at the hearing and one from each family testified. They were unaware of the details of the incident. The dependants of three of the deceased were unaware of their political involvement. They all opposed the application mainly on the ground that the applicants did not make a full disclosure.
Their legal representative argued, in the main, that such non-disclosure related to the question that the applicants' sole intention had from the outset been to eliminate the deceased and not to merely arrest them as they had maintained.
The committee has examined this submission. Although it is possible that the original intention of the applicants may have been to arrest the deceased, the probabilities indicate that at some stage, as the incident developed, they clearly made up their minds to eliminate the deceased.
On their own evidence they believed that Memela and his companions were trained "terrorists" armed with weapons and explosives, who had been responsible for the attack on Winnington Sabelo's family and who were en route to attack a black Counsellor. It is thus clear to us that the applicants believed they were dealing with dangerous people and consequently it is unlikely that they would have only intended to arrest the deceased without appreciating the probability of killing them. This is further borne out by the fact that is was seen as necessary for the Reaction Unit to be called in.
While we are satisfied that the killing of the deceased was "an act associated with a political objective", the question which remains is: Whether the difference between the applicants' stated intention of merely wanting to arrest the deceased and their decision to kill the deceased precludes them from being granted amnesty?
When we look at the incident in its totality, we are of the view that once the applicants decided to apprehend the occupants of the Cressida, a chain of circumstances was set in motion which resulted in their deaths. Such conduct entailed the probability of the killing of the deceased, a result that all the applicants contemplated and associate themselves with.
In the result we find that it would be artificial to elevate this difference in intention to the level of a relevant non-disclosure.
Amnesty is accordingly GRANTED to the applicants for the following:
1. The killing of Tholinhlanhla Blessing Mabaso, Thabani Brian Memela, Luvuyo Angelius Percival Mgobozi and Mbongeni Henry Zondi ("the deceased") on 7 September 1986 at the Quarry Road off-ramp on the southbound N2 Highway, Durban;
2. The unlawful possession of the arms, ammunition and hand grenades which had belonged to the deceased;
3. Defeating and obstructing the ends of justice;
4. In respect of Mathys Cornelius Botha, perjury.
The relatives and dependants of the deceased are found to be victims and are accordingly referred to the Reparation and Rehabilitation Committee in terms of Section 22(1) of the Act.
SIGNED AT CAPE TOWN ON THIS
: DAY OF
: 2000.
: JUDGE H MALL
: ADV F BOSMAN
: MR I LAX
