DECISION
The above sixteen applicants unless otherwise indicated, relate to offences and delicts committed in ANC camps in Angola or Zambia. Before dealing with the evidence relating to the specific offences, the Committee deemed it necessary to deal with the background leading to the establishment of these camps. This had been dealt with by various commissions during the past two decades, including the Truth and Reconciliation Commission. The Committee will briefly refer to the conclusions drawn by these commissions and to aspects of the evidence given before them that might be relevant.
These reports appeared as appendices to the ANC’s Policy Statement to the Truth and Reconciliation Commission in what has become known as the August 1996 submission.
The TRC concluded as follows in Volume 2 Page 366 of its report:-
On the basis of the evidence available to it, the Commission finds that the ANC, particularly its military structures which were responsible for the treatment and welfare of those in its camps, were guilty of gross violations of human rights in certain circumstances and against two categories of individuals – suspected "enemy agents" and mutineers.
The Commission finds that "suspected agents" were routinely subjected to torture and other forms of severe ill-treatment and that there were cases where such individuals were charged and convicted by tribunals without proper attention to due process being afforded them, sentenced to death and executed. The Commission finds that these were acts in which the individuals so affected had their human rights grossly violated. Likewise, the Commission finds that the failure to communicate properly with the families of such victims constituted callous and insensitive conduct.
The Commission also finds that all mutineers who were executed after conviction by military tribunal, irrespective of whether they were afforded proper legal representation and adequate due process, suffered gross violation of their human rights.
With regard to allegations of torture, the Commission finds that, although it was not ANC Policy to use torture, the security department of the ANC routinely used torture to extract information and confessions from those being held in camps, particularly in the period 1979-89. The Commission has taken note of the various forms of torture detailed in the Motsuenyane Commission and finds that they amounted to the deliberate infliction of pain and/or severe ill-treatment in the form of detention in solitary confinement and/or the deliberate withholding of food and water and/or medical care and, as such, amounted to the perpetration of gross violations of human rights.
The Commission finds further that adequate steps were not taken in good time against those responsible for such violations.
In dealing with the present applications the Committee had to take cognisance of the fact that the applicants, according to the ANC’s own submission and the evidence given by General Masondo before a hearing in terms of Section 29 of Act 34 of 1995, acted against ANC policy in torturing the victims.
General Masondo was since 1977 a member of the National Executive Committee of the ANC, the National Political Commissar, a member of the Revolutionary Council and at a stage acted as Deputy Commander of the Liberation Forces and was also a member of the Central Committee of the Communist Party. He testified about the detention camp known as Quattro and the mutiny which took place during the early 1980’s. The camp became necessary because the security forces of the South African government managed to infiltrate the ranks of the ANC on a large scale. People suspected of being infiltrators had to be detained. During that period mutineers rebelled against the established authority of the local ANC commanders, blaming them for not enhancing a more offensive war against the security forces. A further category of soldiers who were detained were those who were undermining discipline by smoking dagga, womanising or were guilty of committing other crimes like stealing or exchanging goods for dagga or drugs. They had to be disciplined in order to maintain military order. Only one of the categories mentioned above, namely people being suspected of being infiltrators actually working and collaborating with the enemy could be regarded as enemies. The other categories were people supporting the ANC, loyal members, and acting against them and torturing them couldn’t be regarded as acts or omissions directed against the enemy but were in fact acts perpetrated against fellow party members.
General Masondo further testified that it was against the policy of the ANC to torture people to obtain confessions. Yet, he conceded that it did happen and that in some instances people were starved and ultimately even executed without bringing them before a tribunal. This was according to his evidence never approved of by the ANC but they recognised that a method of third degree was used in order to obtain confessions.
It is against this background that the Committee has to deal with the present applications. Serious consideration had to be given to the fact that the applicants acted against the policy of their own political movement and in many cases acted against their own loyal party members who committed crimes like smoking dagga or simply ignored party rules.
The Committee is satisfied that the act in setting out criteria or guidelines to assist the Committee in deciding whether an act or offence is associated with a political objective does not lay down that it should be in accordance with party policy. It has previously been pointed out that it was denied that it was the policy of, for instance the IFP or NP, to kill political opponents. It was, however, accepted that killings did take place, that they were politically motivated and in some instances in the security forces, that action was taken against co-members of the forces being suspected of assisting the political opposition in the struggle or being informers or double agents. The same was experienced during the 1980’s when informers and people suspected of collaborating with the security forces were necklaced.
As far as military forces are concerned it was always accepted that they had to maintain strict discipline in order to operate successfully. The Committee accepts that if the objective was to discipline members of an organisation in order to build an effective military organisation to fight the political struggle, offences associated with that objective would fall within the definition of acts, omissions or offences associated with a political objective.
The Committee will now, against this background, deal with the different applications.
The following applications were not proceeded with and were formally withdrawn by the applicants:
1. Kabelo Nimrod Matlaletsa - AM 5096/97
2. W.N. Dlamini - AM 5288/97
3. Keith Matila Mokoape - AM 5513/97
4. Oupa Shadrack Khumalo - AM 6302/97
5. Itumeleng Tsimane - AM 6305/97
6. Lulamile Lennox Magajana - AM 7399/97
7. Ralph Peterson - AM 7508/97
8. Harold Tebogo Khoabane - AM 8065/97
9. Bazil Mkulu Mavuso - AM 6319/97
The Committee heard evidence in the applications that are dealt with below:-
10. DECISION IN THE APPLICATION OF SAUL
MANDLENKOSI MANDLAZI – AM 5095/97
This applicant testified that he was a member of the ANC and that he took part in the interrogation of Sizwe Mabaso as a recording officer. The latter was suspected of collaborating with the security police and supplying information to them which lead to the arrest and detention of Thandi Modise. Mabaso was brought to the safe house in Maputo which served as head quarters of the ANC. The applicant was ordered by his superior, Dan Mohapi, alias Stalin, to assist with the interrogation of Mabaso. They tied him up during the interrogation and continuously hit him so that he would confess to his role in the arrest of Thandi Modise. He was recruited by Thandi Modise to her Unit and was suspected of causing her arrest. During interrogation he contradicted himself and that caused the assault on him.
The Committee is satisfied that the applicant made a full disclosure of the relevant facts and that the offence was associated with a political objective. The applicant conceded that they acted on mere suspicion and that it wasn’t proved that Mabaso was in fact collaborating with the South African Security Forces.
The Committee concluded as follows:-
Amnesty is
GRANTED: to the applicant in respect of the assault on Sizwe Mabaso during interrogation at the head quarters of the ANC in Maputo during 1982.
In terms of Section 22 of Act 34 of 1995 Sizwe Mabaso is considered to be a victim and is referred to the Committee on Reparation and Rehabilitation.
11. DECISION: APPLICATION OF THABO JOHN SPHAMBO
AM 5097/97
The applicant applies for amnesty in respect of any offence which led to the death or contributed to the death of Eric Pharatsi in the Kibashi Camp (Camp 13) in Angola.
The applicant testified that he was the Recording Officer and Acting Chief of Staff in the Camp. The command structure of the camp comprised of Livingstone Gaza, the commander, the applicant, Edwin Mabitse, a commissioner and one Victor who was the chief logistic officer. They received information that Eric Pharatsi was stealing camp property and was exchanging it for dagga which he brought back and distributed in the camp. The smoking of dagga was prohibited in the camp. They considered the matter and found Eric Pharatsi guilty and ordered that he should be kept in solitary confinement.
The applicant further testified that he received a report on the following day that Pharatsi died in the underground cell of suffocation because, unknown to him, he suffered from asthma.
The deceased’s mother and sisters opposed the application. One of the sisters known as Belinda testified that she was in Angola in August 1981 when her brother died. At the time she was in the transit camp in Luanda and was informed of his death four days after he had been buried. She was informed by General Masondo that he died of shock. She denied that he suffered from asthma but admitted that she and one of her sisters were asthmatic.
She further complained that she was not shown his grave notwithstanding promises by General Masondo and Commander Ngwane that she would be taken to his grave.
There is no evidence to contradict applicant’s version. It is not clear what offence applicant actually committed. Although there was no law authorising him to detain a person, it is accepted that he acted in accordance with the rules and regulations of the ANC. It seems however clear that the victim died because he was detained in an underground cell which was not suitable for detention of a person who might have breathing problems. It may be that the applicant after full and proper investigation may be found guilty of at least culpable homicide. A refusal of amnesty on the grounds that it is not clear whether the death of the victim was caused by the negligence of the applicant could cause irreparable harm to the applicant if a court of law (which wouldn’t be bound by a finding of the committee that no offence was committed) would find that he was indeed guilty of an offence.
The Committee is satisfied that he made a full disclosure of his involvement in the punishment of the deceased.
In the result amnesty is
GRANTED: to the applicant in respect of any offence or delict flowing from the detention of Eric Pharatsi in an underground cell in Camp 13, Kibashe, Angola and his death during such detention.
The mother of the deceased Mrs. I.N. Pharatsi (011-936 8057) is referred to the Committee on Reparation and Rehabilitation in terms of Section 22 of Act 34 of 1995.
DECISIONS IN THE APPLICATIONS OF MZWANDILE LEON NDABA AM 5100/97 AND CHARLES MARTIN MOTLALENTOU LIETA AM 5295/97
Apart from the application forms completed by the applicants, the Committee was also furnished with extracts from the Motsuenyane report dealing with the assault on Bhekinhlanhla Goodluck Mpungose. Mr Mpungose also attended the hearing and testified before the Committee and he also confirmed the contents of an affidavit previously filed.
At the outset applicant Ndaba stated that in so far as his application might have indicated that he acted with the explicit approval of Mr Jacob Zuma and Mr Joe Nhlanhla that wasn’t the position. He assumed that they would have approved of some degree of force being used in order to obtain a confession from the victim. The applicant was not aware whether a report was submitted to them and if so, what their reaction had been. They, however, didn’t act on their orders.
Both applicants were members of the counter intelligence unit of the ANC, stationed at (Hammersdale), Lusaka. Their Unit consisted of Tim Williams who was in command, a person known as Bonny M. and the two applicants.
Williams instructed them to arrest the applicant after he had been lured to Zimbabwe and thereafter to Zambia by one Bafana Duma. After arresting him they took him to a house in Hammersdale where they searched him and started debriefing him.
They testified that they found a note with the registration number of Mr Joe Nhlanhla’s car as well as an IFP membership card on him. The victim, Mr Mpungose admitted that he had an IFP membership card and an empty container which previously contained polish for Mr Nhlanhla’s car. He said that he obtained the container in Lusaka at the ANC’s offices after it had been used and thrown away. As far as the IFP membership card was concerned, he explained that during that period hostility between the IFP and ANC was rife in KwaZulu Natal and each party had its strongholds which were prohibited areas for opposition members. It was a well known (and approved) method for ANC members to obtain IFP membership cards to enable them to enter IFP areas. This explanation wasn’t accepted by the applicants and they maintained that he was a spy and that the membership card was proof thereof. The applicants conceded in evidence before the Committee that at the time of the interrogation they were not aware of the fact that ANC members used IFP membership cards to gain entrance into IFP strongholds. They only became aware of this on their return to the RSA during the nineties.
It was further common cause that Mpungose was a former policeman who retired from the police force in 1979 and thereafter became a herbalist. His previous commander was a certain Captain Botha and according to the applicants they received information that Mpungose gave information to Botha which led to the arrest of four ANC cadres. Mpungose denied that he gave any information to Botha and that any member of the ANC who was known to him at the time, was in fact arrested.
The applicants further testified that they took part in the interrogation and debriefing of Mpungose. They said he confessed that he was an agent of the enemy but would then again retract his confession. As a result thereof they assaulted him, inter alia by beating the soles of his feet. They on one occasion took him to the Congela Farm where they interrogated and assaulted him from about 7.00 in the evening till 4.00 in the morning. He then confessed that he was an enemy agent and Williams reported that to the leadership. The leadership then decided that he should be transferred to Angola for further detention. He was taken to Angola by applicant Ndaba who was also known as Spinks and according to him he was again assaulted and humiliated by Ndaba in Angola. He ultimately landed in Camp 32, also known as Quadro, where he was detained for 3 years and 7 months without being given the opportunity to appear before a tribunal. As previously stated this incident was investigated by the Motsuenyane Commission who found that Ndaba who was also known as Floyd Huna or Spinks used excessive force on Mpongose in Lusaka as well as in Luanda.
Applicant Lieta stated before the Committee that the Motsuenyane Commission wrongly used the name Piliso in its report. They should have referred to him as the person who used excessive force in Lusaka. The Committee doesn’t find it necessary to refer in more detail to the Motsuenyane report. The Commission dealt fully with this incident on pages 94 to 99 of its report and in its conclusion implicated various other people as far as assaults on Mpungose is concerned. The Commission further dealt with the evidence of Ndaba (Floyd Huna) on page 132 and Tim Williams on page 149.
Mpungose testified about the various assaults, stating that apart from being beaten up, he was hung upside down from a tree, burnt with a candle underneath his feet and showed various marks indicative of assaults on his body. He further stated that although the applicants did not make a full disclosure about the manner in which they assaulted him, he does not wish to oppose their applications for amnesty.
In the result amnesty is
GRANTED: to both applicants in respect of the following offences
A
1. The kidnapping of Bhekinhlanhla Goodluck Mpungose on or about 20 May 1987 at Lusaka.
2. The assaults with intention to do grievous bodily harm on the said Mpungose at Lusaka and on Congela Farm on various occasions during the period 20 May 1987 to 15 July 1987.
B. Amnesty is also
GRANTED: to Ndaba in respect of assaults on the said Mpungose at Luanda during the latter half of 1987.
It is recommended that Bhekinhlanhla Goodluck Mpungose should be considered to be a victim in terms of Section 22 of Act 34 of 1995.
14.
DECISION IN THE APPLICATION OF SAMUEL : WATHEDI MANGENA AM 5275/97
During 1984 some of the ANC cadres had been accused of mutiny against the ANC command. They were arrested and imprisoned in Luanda. They went on a hunger-strike and the Angolans requested the ANC to remove them from the Angolan prison. It was decided to take them to Camp 32 (also known as Quadro) Edward Dlamini was one of the leaders of the mutineers. During the transportation a scuffle broke out between him and the ANC soldiers overseeing the prisoners. The applicant, who was one of the MK soldiers responsible for transporting the prisoners, forcefully subdued Dlamini. The applicant seeks amnesty for this assault.
The Committee is satisfied that the applicant met the requirements of Act 34 of 1995 and amnesty is
GRANTED: to the applicant in respect of the assault on Edward Dlamini during 1984 on the road from Luanda to Camp 32.
15. DECISION IN THE APPLICATION OF MZWANDILE
ALPHEUS DAMOYI AM 6303/97
The applicant was the camp commander at camp 32 in Angola. He seeks amnesty because he feels responsible for the death of two inmates, Zaba Maledza and Edward Masuku, who died during detention. It was suspected that Maledza committed suicide because the electric bulb in his cell was missing and that Masuku died because of a lack of blood. His palms and feet were very pale.
The applicant testified that he felt responsible for their deaths because he, as camp commander, failed to built bigger and better cells for the detention of inmates. In his application he stated, "some of the inmates whose names I have forgotten died because of congestion, some because of the dampness of the floor where they were kept."
On the evidence it is not clear whether the applicant is indeed guilty of committing an offence. He, however, accepted responsibility for the deaths of the inmates who died while in detention under his command. It may be that his negligence contributed to their ill-health and death.
Amnesty is
GRANTED: to the applicant in respect of any offence or delict committed by him while he was the camp commander of Camp 32 and which contributed to the deaths of Zaba Maledza and Edward Masuku during 1983 to 1985.
16.
DECISION IN THE APPLICATION OF MORUTI EDMUND : NOOSI AM 6304/97
The applicant was a member of the ANC, serving in the Security Unit as a Recording Officer. He seeks amnesty for firing a shot at Khotso Morena also known as Mwenzi Twala, in an attempt to kill him and for the assault on Ben Masero.
He testified that there was mutiny in several ANC camps during 1984. He was one of the ANC soldiers who were sent to disarm the mutineers. While they were in the process of disarming and arresting them Twala started to run towards the tent of the leadership where arms were kept. He ignored shouts to halt and the applicant fired a shot at him and wounded him. His objective was to protect the ANC leadership who in the tent namely Chris Hani, Joe Modise and Lambert Moloi. The offence was associated with the political objective of protecting the ANC leadership.
He also applies for amnesty in respect of an assault on Ben Maseko (real name Don Sipho Mashela). According to him he had to discipline Maseko who was detained because they considered him to be a security risk. The applicant also conceded in cross examination by the legal representative of Maseko that he interrogated him but denied that he ever hit him with a pistol butt. The victim, Maseko, showed a scar on his nose, complained about an injury causing bad eye sight and indicated various scars on his body, testifying that they were the result of assaults. He further testified that his real name is Don Sipho Mashela and that he was assaulted by the applicant on various occasions. The applicant only applied for one incident of assault.
We have dealt with the background to the camp detentions and the fact that assaults were contrary to ANC policy, rules and regulations. It was however a fact that assaults did occur and that a blind eye was turned on force being used to obtain confessions. The applicant only applied for one incident of assault.
After considering the evidence the Committee is satisfied that the application fall within the ambit of Act 34 of 1995.
Amnesty is
GRANTED: to the applicant in respect of an assault on Don Sipho Mashela alias Ben Maseko in Camp 32 in Angola during or about September 1981, at or near the medical depot.
It is recommended that Don Sipho Mashela be declared to be a victim in terms of Act 34 of 1995.
SIGNED AT CAPE TOWN ON THIS THE _______ DAY OF ____________ 2000.
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JUDGE A. WILSON
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C. DE JAGER (AJ)
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MR J B SIBANYONI
